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Family Law

The leading authority on all aspects of family law

12 JUL 2011

High Court rules Cafcass only has a 'general duty' to provide Guardians

By Hugh Logue, Newswatch Editor

CafcassA High Court judgment handed down today has dismissed a claim for judicial review and found that Cafcass' actions in the wake of the massive increase in care cases were lawful.

Judges dismissed the claim that Cafcass had not allocated four care cases quickly enough in 2009-10, citing the main issue as resources. The judgment found that, in trying to allocate cases as quickly as possible, Cafcass had met its general target duty to safeguard and promote the welfare of the children referred to it each year. Judges also dismissed claims that Cafcass had breached Articles 6 and 8 of the Human Rights Convention.

Anthony Douglas, Chief Executive said: "We are pleased with this crucial judgment, which endorses the way in which we have sought, in the face of unprecedented demand, to provide a service as quickly as possible to every single child referred to us, and to prioritise work and cases, as all demand-led frontline organisations have to do. We are now allocating care cases to Children's Guardians on average four days after receipt from the courts, which is a massive improvement in our service to children.

"Longer term solutions are a matter for the Government, following the Family Justice Review's report in the autumn. However, with local authorities identifying more children at risk of significant harm, for which we applaud them, and with cases lasting longer in the courts, the pressures on all of us look likely to remain high for the foreseeable future. This means that we will all need to continue to take steps to ensure that we use our resources as effectively and efficiently as possible, to ensure that every child whose case is before the family courts receives the best possible service."

The judgment by Lord Justice Munby and Mrs Justice Thirwall reinforced an earlier judgment by Mr Justice Charles and makes it clear that the legislation set down by Parliament places a general target duty on Cafcass to provide Guardians as soon as reasonably practicable, for all children whose cases are before the family courts. The judges agreed with the earlier 2003 judgment by Mr Justice Charles that Cafcass should provide a Children's Guardian as soon as reasonably practicable, but this had to take into consideration Cafcass' staffing and budgetary resources and other demands. The judges concluded: "The driver in all four cases was Cafcass' lack of resources. Its decisions were entirely rational."

The judges said (at paragraphs 91, 92 & 93 of the judgment): "There is a general duty imposed on Cafcass to ensure that children are represented, but that is not to say that there is a specific duty to ensure that a particular child is represented... Moreover, and in any event, it is simply not possible to spell out of [the statutory framework] any obligation to do anything in any particular case within any particular timescale.

"The most that can sensibly be read into sections 12(1)(c) and 12(2) (of the Criminal Justice and Courts Services Act 2000) is an obligation to appoint 'as soon as reasonably practicable' but, and this is the key point, as soon as reasonably practicable having regard to Cafcass' general functions and duties under section 12, to its resources (both human and financial) and to the various competing demands upon it."

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