Court has no power to require Cafcass to undertake work with non-subject child, judge rules

A court has no power to require Cafcass to appoint one of its officers, whether a children's guardian or otherwise, to undertake any work with or play any role with a non-subject child, a High Court judge has concluded.

The background to the case of A County Council v Children and Family Court Advisory and Support Service (Cafcass) [2019] EWHC 2369 (Fam) was that:

• Care proceedings had been issued by the local authority on 14 May 2018 in respect of one child, X, who was born on 11th May 2018. Her mother is Y and her father is Z.
• In the usual course of public law proceedings a children's guardian was appointed to represent the interests of X.
• The local authority contends that the threshold criteria of s31(2) of Children Act 1989 are satisfied in respect of X.
• One of the matters relied on by the local authority in support of its contention that the threshold criteria were satisfied was an allegation made by a young person, AB, that the father had sexually abused her between 2011 and 2018. The father denies the allegation. A police investigation is ongoing.
• AB and her mother were unaware that the local authority were relying on the allegation she had made against Z. AB and her family are supported by a social worker from the council.
• Upon learning that the local authority were relying on AB's allegation, an application was made on behalf of Z for AB to be called to give evidence.

An issue arose as to who should undertake enquiries and work with AB "to assist the court in determining (i) whether a non subject child should be directly involved in these proceedings; and (ii) to undertake a Re W assessment of the child to assist the court to be taken in relation to the said allegation in the context of these proceedings."

Mr Justice Keehan said various options were explored before the circuit judge including the work being undertaken by a social worker from the local authority and a social worker from the council who had previously been involved with AB and her family, or by an independent social worker.

On 18 March 2019 the circuit judge to whom the case was allocated decided to direct Cafcass to undertake the role of undertaking the Re W assessment, presumably by the appointment of an officer of Cafcass. “It is important to note that this appointment was not directed to the guardian appointed to represent the interests of X in these proceedings,” Mr Justice Keehan said.

Cafcass objected to the making of this direction on the ground that the direction was made in respect of a non-subject, non-party child and therefore fell outwith the statutory functions of Cafcass. Cafcass made written submissions to the judge setting out its position and inviting the court to discharge the direction.

On 22 May 2019, and in order to avoid any unnecessary delay in these proceedings, the judge discharged the direction made in respect of Cafcass and directed that the role should be performed by an independent social worker at the joint expense of the parties to these proceedings.

The order of 22 May 2019 which made the above appointment of an ISW contained the following recital: "And upon the issue as to 'whether it is within the power of the court to request Cafcass to assist the court to undertake an assessment (including a Re W assessment) of a child involved but not the [subject] children [act] proceedings' being considered a matter of general importance in family proceedings and for that reason to be referred to a Judge of the Family Division."

The matter was then allocated to Mr Justice Keehan as the Family Division Liaison Judge of the Midland Circuit.

After hearing submissions from the local authority and Cafcass, including in relation to the interpretation of Cafcass’ function as set out in s. 2000 of the Criminal Justice and Court Services Act 2000, Mr Justice Keehan found that the role of Cafcass is limited to the subject child or children of those proceedings.

He said he was “in no doubt that a children's guardian, appointed to represent a child in public or private law proceedings, may be required to advise the court on the subject child's relationship with a non-subject child (eg a step-sibling) and the impact on the same depending upon the orders made by the court for the future placement of the subject child…..

“Similarly, a children's guardian may be required to enquire into and advise the court about a wide range of matters and about a diverse group of people (eg relatives, friends and connected persons etc). This could include advising the court on the benefits/disadvantages of a non-subject child being called to give evidence in the proceedings. What is key, however, is that the objective and focus of these enquiries and of the advice is, and must be, establishing the welfare best interests of the subject child.”

It was “quite a different matter”, he said, “to seek to appoint an officer of Cafcass, whether a children's guardian or otherwise, to work with and advise upon a non-subject, non-party child. I have not been referred to any statute nor to any relevant rule of court which makes provision for such an appointment in these circumstances. I am satisfied such an appointment is outwith the statutory function and role of Cafcass.”

Mr Justice Keehan therefore concluded that the court had no power to require Cafcass to appoint an officer of Cafcass, whether a children's guardian or otherwise, to undertake any work with or play any role with AB.

He said: “The preparatory work directed by the judge ought properly to have been undertaken by a social worker from the local authority and/or a social worker from A City Council or, as was ultimately directed, by an independent social worker.

“The young person, if called to give evidence, would have been the local authority's witness on whose testimony it relied in seeking to prove relevant facts which, if found to be proved, would have satisfied the threshold criteria of s.31(2) of the 1989 Act.”

Mr Justice Keehan added that he had not taken account of the potential adverse consequences for Cafcass, in terms of workload, if he had concluded the court had the power to make directions in respect of a non-subject child.

“Given, however, the increase of the workloads for all concerned in the child protection and family justice systems, now is not the time to consider widening the scope of the functions of Cafcass with its current resources,” he said.