About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Monday, 12 July 2010

Cafcass: advocates duties when there is no Officer appointed

One of the most regrettable casualties of the increase in workload has been the availability of Cafcass Officers to report in cases. I posted a while back about having seen my first case begin and end without a Cafcass Officer. Another fellow cyclist (Claire Holland of Lawrence Davies solicitors) told me that she was just approaching an IRH / possible final hearing in a public law case in which she was acting for the children but no Guardian had been allocated. The other parties in the case were heading towards a reunification plan with parents who needed a great deal of social work and other support and wanted the case to be concluded at the IRH. She was fairly confident that the plan was a good one but felt particularly concerned that the devil was probably in the detail of the support package which was just the sort of thing she would prefer to rely heavily on the Guardian to scrutinise. She was minded to ask for the case to be adjourned but had no idea by when Cafcass could allocate and do any work. At the last minute a Guardian was allocated but could not come to court. The court had hoped that the GAL could spend the day at court and be ready later in the day to make a recommendation. By the time it became clear that the Guardian could not attend the court agreed that the case should be adjourned although it insisted on a very tight timetable for the newly appointed GAL to complete their work (less than a month). The court indicated, however, that had they known at the outset of the day that the GAL could not attend they would have been minded to deal with the case on a final basis.

Another cyclist told me about a difficult hearing where the court was having to decide on interim removal in a finely balanced case without the benefit of input from a Guardian involving a mother with a poor track record but very considerable recent improvement such that it was on a knife edge whether there should be early separation followed by assessment or placement together with assessment. The court felt it had to err on the side of caution but would have very much welcomed a considered view from a GAL.

I have just met a Cafcass Guardian for the first time in a case which has been going on for some months. She was not appointed for several months but was still so deluged with work ( she reported having 29 cases to deal with) that she had not felt able to prioritise the case and therefore had not met the parents or seen the child. The child was very young and placed on an interim basis (before proceedings) with a member of the friends & family network and was having extensive contact to the parents. The case concerned an injury to the child but the fact finding is not for months and the parent's have accepted they have no choice but to agree that the child should be accommodated on an interim basis. The Guardian came to court on the last occasion for the first time because issues had arisen leading the local authority to seek an ICO having managed the case to date with a s 20 agreement.

I was told at court today about a Cafcass Officer somewhere north of London who had been dealing with 54 cases and imagine our surprise has now gone on long-term sick leave.

The President's Interim Guidance asks the following(arguably dangerous) questions re public law cases with a view to easing the workload of Cafcass.

* Does a Guardian need to be appointed at all?

* Can the Guardian's attendance at particular hearings be excused? They should normally be excused from attending fact finding hearings.

The court is supposed to make a directions stating by when a Guardian should be appointed, taking account of the timetable for the child and the specific needs of the case (for example, as to when welfare issues may be before the court). I would comment that firstly, many courts do not seem to be aware that this is what they are being encouraged to do and secondly, it does not make much difference because the workload of many Cafcass Officers is frankly overwhelming. Often a named officer will have been allocated but because of their individual case load they will not actually be able to complete any useful work.

This is certainly one of the issues which I will be dealing with in my response to the Family Justice Review's Call for Evidence (responses are due by 30 September 2010).

Duties of Advocates

The Bar Council has published the following advice for barristers:

"It has come to the attention of the Bar Council that Counsel are at times appearing in court on behalf of children even before a Guardian has been appointed. Frequently, the child's solicitor is not at court. Counsel finding themselves in that situation are reminded that they may not make submissions on the child's behalf and hold no more than a watching or noting brief in such circumstances. More generally, Counsel are reminded that their active participation in such proceedings depends upon their having clear instructions which will be given by the Guardian through a solicitor."

The Law Society website containst two useful documents :

In the Practice Note on Acting in the Absence of a Children's Guardian they say:

"In default of instructions you should represent the child "in furtherance of the best interests of the child" in view of Section 41 of the Children Act 1989 and Rule 4.12 of the Family Proceedings Rules 1991. What work is necessary will be a matter of your professional judgement in the individual case. You should not, however, undertake the Guardian's professional role. You should not make welfare decsions and recommendations based on personal feelings. While you should act in accordance with the particular child's best interests, you are not in a position to advise the court what those interests are but you make make the court aware of all the available options, without specific recommendations".

What that advice seems to me to indicate is that solicitors without Guardians can only go a little bit further at court than their barrister counterparts. In other words they can perhaps express a stronger view about assessments, directions & case management but should refrain from commenting directly on, for example, whether or not a child should be removed from parents on an interim basis (assuming that the child is not old enough / competent to give instructions directly). In fact the Law Society Guidance spells out that advocates should not recommend that an interim care order be made. They can make submissions reminding the court of important evidence and facts which support the argument for removal but they should also be sure to acknowledge any counter arguments. They can also make submissions as to whether the evidence passes the threshold test.

Regrettably I am encountering many cases where advocates go much further than this and start making representations as to welfare (often adding the offending words 'I think') which can tip a case away from parents, particularly in the magistrates' courts. The Law Society Guidance specifies that if urgent and specific welfare advice is needed the advocate should consider applying to the court for leave to consult an expert social worker or other appropriate expert to advise the court. This may be easier to say than to implementand the court has to be mindful of the burden on the public purse. No doubt the LSC would have something to say about it too and it could cause problems later on in a case if the independent then took a different view from the Guardian. Such an appointee would also not have the powers vested in the Guardian by the Act and the rules. That said, this is an option and arguably a better one that straying into US style partisan advocacy habits.

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