Landmark judgement re-asserts the independence of Children’s Guardians as a vital element in protecting children.

In a landmark judgment today in the High Court Sir Nicholas Wall, President of the Family Division, today emphatically underlined the independent status of the Children’s Guardian.

In ringing and powerful words Sir Nicholas stated:  “I yield to no-one in my view that the guardian’s independence needs to be cherished.”

In a ruling that supported the arguments put forward by Nagalro, the professional association for children’s guardians, he told Cafcass that it cannot remove Guardians from cases before the court.   Neither must it substitute its own organisational view for the court-appointed guardian’s view of what will be in the best interest of the child.

The  Background

Nigel Priestley Senior Partner at Ridley and Hall Solicitors Huddersfield who represented Nagalro explained the background.

“A Children’s Guardian had successfully opposed the local authority plan in court for an 18 month old child.

She had supported the placement of a child back with his parents whilst their capacity to care for him was assessed. The Local Authority had wanted the child separated from his parents and put in foster care.

The court acted on the recommendation of the Children’s Guardian.  In a bizarre turn of events a Senior CAFCASS manager received an anonymous email calling on him to look into the guardian’s recommendation.

The issue that arose in the case was the fact that the local authority and Cafcass managers communicated between themselves to covertly engineer the removal of the Children’s Guardian”

He went on, “Nagalro 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.

Children’s Guardians, many of whom are Nagalro members have been put in positions of professional conflict. They risk being in breach of either their organisational duty to Cafcass as their employer or their statutory duty to the court as set out in s41 Children Act 1989.

Sir Nicholas set out what would happen in the event of a disagreement between the manager and the guardian. The President did not support Cafcass’s assertion that the managers view would prevail. The proper and transparent course is for the Cafcass manager to go to court and explain why they have taken a contrary view. It will then be for the court to decide on the basis of all the evidence before it.

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”.

Comments on the decision

Commenting on the President’s decision Nigel Priestley said: “After Baby P there are still large numbers of Care Proceedings being started. Some say there should be even more. It is vital that a Guardian can stand back and question the Local Authority’s plans. There is nothing worse for parents to feel that the Local Authority and the Guardian are hand in glove. This is a landmark decision.

Children’s Guardians should be able to make a tough decision without having to look over their shoulders to see what management might think of their decision. Guardians are under enormous pressure at present. This is decision means that there is one less pressure on them now.

Sir Nicholas called it “shocking” that the parents were kept in ignorance of the discussions. He was particularly critical of the lack of transparency and fairness in the case.  He was right to be so critical. Too often parents feel that the case is cut and dried and that they are powerless. This is a clear reminder that there must be openness in all dealings between social services and both the Guardian and Cafcass.”

Mr Priestley paid tribute to counsel, Martha Cover and Deirdre Fottrell who at very short notice assembled the powerful arguments that were so influential in the case.

Ann Haigh, Chair of Nagalro, said today: “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.

Notes:

1. NAGALRO is the Professional Association for Children’s Guardians, Family Court Advisers and Independent social work practitioners.  The association aims to promote and enhance the quality of practice of those concerned with the independent representation of children’s interests before the courts, throughout England and Wales.

2. Children’s guardians are appointed in public law proceedings in the family courts i.e. where Local Authority Children’s Services take court action to protect children whom they believe are suffering significant harm within their families, – physical, sexual or emotional abuse. The role developed to give children a voice after the tragedy of Maria Colwell, a seven year old girl whose voice was not heard when the court returned her to mother and step father who murdered her. They are also appointed in adoption proceedings, emergency protection order, and secure accommodation applications.  Family Court Advisers also act in private law cases, reporting to the court on children’s welfare in relation to contact and residence issues. A Guardian can also be appointed for a child in private law proceedings under Rule 9.5 where their welfare requires independent representation.

3. The NAGALRO website can be found at: www.nagalro.com