What is CAFCASS? Who is the guardian?

Children and Families Court Advisory and Support Service

This gives us the acronym ‘CAFCASS’. The main function of Cafcass is to advise the court about what is in the best interests of the child whom it represents in family proceedings.

Cafcass was created by section 12 of and Schedule 2 to the Criminal Justice and Court Services Act 2000 (CJCSA 2000).

See also the Family Procedure Rules 2010 Part 12  and Part 16 and Practice Directions 12A and 16A.

  • The official Cafcass website is here.
  • The Cafcass Operating Framework
  • Ofsted published its first national report about how well Cafcass was doing in 2014, concluding that there had been very significant improvements since 2009 and it was now an effective organisation.
  • The Association of Directors of Children’s Services (ADCS) has published a number of Good Practice guides for Cafcass.
  • However, it seems that complaints made about Cafcass are rising and there are worries about how effectively Cafcass is either recording or responding to those complaints. See this post from Pink Tape.

 

What was CAFCASS set up to do?

The principal functions of the Service are set out in section 12(1) of the CJCSA 2000.

(1) In respect of family proceedings in which the welfare of children is or may be in question, it is a function of the Service to—
(a) safeguard and promote the welfare of the children,
(b) give advice to any court about any application made to it in such proceedings,
(c) make provision for the children to be represented in such proceedings,
(d) provide information, advice and other support for the children and their families.

 

How does CAFCASS safeguard and promote the welfare of children in care proceedings?

By providing ‘guardians’ to represent children in care proceedings. See Rule 16.3 of the Family Procedure Rules.

Guardians are considered a very important part of care proceedings. Baker J commented in 2013:

A crucial feature of the guardian’s role has been the early appointment, right at the outset of the proceedings. So often it is decisions taken at that stage that have a defining influence on the eventual outcome as well as a fundamental impact on the child. An experienced guardian is able to come fresh to a case and bring the wisdom of their expertise to bear on the immediate decisions that have to be made at the outset of proceedings … In cases where the social worker, advocates and the tribunal may lack much experience, the guardian’s role is vital…

Research from Bristol University in 2011 described the role of the guardian in this way:

The children’s guardian is an independent professional, responsible to the court for their recommendations. Their role is to investigate the child’s circumstances, usually to instruct the child’s solicitor, to represent the child’s best interests, and to advise the court about the child’s welfare and specific matters such as making other people parties to the proceedings. The children’s guardian provides an analysis of the child’s circumstances at various points in the case in order to assist the court to decide what expert assessments are required and whether the proposals of the parties match the child’s welfare needs. A children’s guardian can influence the ways both local authorities and parents view the child’s care, and consequently help them to agree arrangements. They are regarded as highly influential in care proceedings (Masson and Winn Oakley 1999; Hunt 2009).

Because the guardian represents the child they are are not in the ‘camp’ of either the LA or the parents, and will thus often have considerable influence over the court’s decision.  A Judge will need to give clear reasons for not following the guardian’s recommendation.

For an interesting case about what happened when a LA disagreed with the views of a guardian, see this case from 2011.

Under rule 16.3 of the Family Procedure Rules, the court must appoint a guardian where the child is subject to ‘specified proceedings’, unless the court is satisfied it is not necessary to safeguard the interests of the child.

‘Specified proceedings’  is defined by section 41(6) of the Children Act 1989 and includes any application for a care or supervision order.

 

What does the court do after a children’s guardian has been appointed?

See Rule 16.18
(1) Where the court appoints a children’s guardian under rule 16.3 a court officer will record the appointment and, as soon as practicable, will –
(a) inform the parties and CAFCASS about the court’s decision; and
(b) unless it has already been sent, send the children’s guardian a copy of the application and copies of any document filed with the court in the proceedings.
(2) A court officer has a continuing duty to send the children’s guardian a copy of any other document filed with the court during the course of the proceedings.

 

Powers and duties of the children’s guardian.

See Rule 16.20 of the Family Procedure Rules. The guardian must act on behalf of the child in the court proceedings to safeguard the child’s interests. The guardian must also provide the court with other assistance that it requires.

The guardian is independent and seen as a safeguard against poor social work practice; section 42 of the Children Act 1989 gives the guardian extensive access to see and copy documents held by the local authority.

The guardian will interview family members, talk to social workers and other relevant professionals and read the court papers in order to produce written recommendations to the court. If the child is old enough the guardian will take time to go and see the child and make sure his wishes and feelings are understood.

As the guardian’s analysis of the case is likely to be very influential, it is important for parents to make time to meet with the guardian and try to discuss what is going on.

Sir Nicholas Wall, then the President of the Family Division considered in 2011 what should happen when guardians meet to talk about ‘live cases’ with the local authority.

115. Family law is multi-disciplinary and cooperative. It is inevitable and quite proper that officers of CAFCASS and members of the local authority will meet and discuss matters of mutual interest. The same applies to any professional body engaged in family proceedings. I agree with the general consensus, however, that where the topic under discussion is a “live” case – that is a case before the court – such conversations should be (a) rare; (b) strictly necessary for the proper progress of the case; (c) minuted; and (4) disclosed to all the other parties in the proceedings and available, if required, to the court.

116. Despite the confidentiality of the proceedings overall and the fact that the hearings take place in private, the watchword of family justice is “openness”. Within the context of the proceedings, each party must know what is going on.

The Guardian is NOT an advocate for the court

The Guardian’s role is an important one, but must not be overstated. The Guardian represents the interests of the children and therefore does not have a duty to act as an advocate for the court, for e.g. by helping other people make their arguments.

There is useful discussion about the role of the Guardian in the case of MW and Hertfordshire County Council in 2014. Two people who were intervening in a case were not native English speakers and did not have any legal representation. There was a suggestion that for litigants in this position, the Guardian should act as ‘an advocate for the court’ and help the litigants in person make their case. The court very firmly rejected this:

21.The children’s guardian is not a “neutral” party or participant. When appointed under the Family Procedure Rules (“FPR”) 16.3, as here, the children’s guardian has a duty to safeguard the interests of the child and to present an independent view of the best interests of the child. Practice Direction (“PD”) 16A 6.2 requires the children’s guardian to appoint a solicitor and instruct the solicitor on “all matters relevant to the interests of the child arising in the course of the proceedings” unless the child, being of sufficient understanding instructs a solicitor on their own behalf. FPR 16.29 specifically provides that a solicitor appointed by the children’s guardian must act in accordance with their instructions unless in conflict with the child’s instructions, if that child has sufficient understanding to give instructions on their own behalf, or in the absence of either in furtherance of the best interests of the child. Whilst FPR16.20 (2) requires the children’s guardian “must also provide the court with such other assistance as it may require”, quite clearly a court should never request assistance which renders the children’s guardian or their legal representative effectively engaging in advocacy on behalf of a party or witness whose position creates an actual or perceived conflict of interest with that of the child.

22. This court has been invited by Mr Samuel to issue guidance in the light of increasing numbers of litigants in person in family cases refused access to public funding. I would decline to do so beyond repeating the caution urged in paragraph 18 above, reminding advocates of their duties of fair play and squashing any lingering notion that the children’s guardian’s exercise of duties in the advice tendered to the court, service of documentation and inspection of records in accordance with PD 16A, 6.5 to 6.10 establishes them as an advocate to the court.

The importance of good analysis

It is very important, particularly if the LA is asking the court to make an adoption order, that the guardian considers carefully all the realistic options available to the child and considers both the positives and negatives about the parents’ case. See Re B-S (Children) 2013.

The welfare checklists

The Children Act 1989 checklist

Part of the guardian’s analysis should include consideration of the relevant ‘checklists’. In care proceedings, the guardian must have regard to  section 1(3)(a) to (f) of the 1989 Act which sets out ‘the welfare checklist’. The guardian has to consider:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e )any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.

The Adoption and Children Act 2002 checklist

When the guardian is considering placement or adoption orders, the guardian must consider a similar checklist in section 1(4)(a) to (f) of the 2002 Act as if for the word ‘court’ in that section there were substituted the words ‘children’s guardian’.

(a )the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),
(b) the child’s particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

The Direct Involvement of the Child

What if a child doesn’t agree with the views of the guardian?

If the child is old enough and has a good enough understanding of what the proceedings are all about, he can chose to be represented by his own solicitor. The guardian should be alert to the possibility that an older child may not agree with the guardian’s recommendations, and may wish to give his own instructions to the solicitor.

A child can also speak to a Judge directly. We deal with these issues in another post – The direct involvement of children in court proceedings.

Here is a useful article about involving children in family proceedings – how and why. 

 

19 thoughts on “What is CAFCASS? Who is the guardian?

  1. Lynn Wheatley

    I believe that you are supporting my 2 nephews [redacted]& [redacted] under the care of Duley Social Services. Their grandmother was refused input in this case, although she had cared for [redacted]for 5 yrs plus and his brother [redac ted]according to information the mother was told by social worker to break all contact with family and she would keep her sons, how wrong was she? It seems little [redacted]is going for adoption and long term foster for [redacted]How come Caffcass has not been in touch with any family to prevent 2 brothers being split up this 6 yr old has human right section 8 no other family has been asked to provide a home for our children this is a forced adoption, what about keeping family’s together? You are supposed to be looking after the best intreast of the children not social services. I would be grateful for a meeting with you, we are awaiting a meeting with [redacted]regarding this forced adoption. My telephone no [redacted]awaiting your response Lynn Wheatley

    Reply
    1. Sarah Phillimore Post author

      Lynn, I have removed the children’s names as it is contempt of court to identify children involved in care proceedings.

      I have also removed your phone number because I think you may have got the wrong end of the stick about this site – we have no links with CAFCASS, this site is to provided information and encourage debate.

      If you think that family members have been wrongly overlooked in care proceedings, you should get some urgent legal advice. You may find something helpful on out Links And Resources page – look under Legal Advice.

      Reply
      1. Lynn Wheatley

        Thanks Sarah we are trying very hard to stop this we do have legal advice but can’t do anything till Feb then I think it will be to late the little one is for adoption in January our hearts are broken the only thing we can do is write letters to these services saying we have concerns re:- forced adoption and splitting these little boys , they have rights, don’t know what else to do.

        Reply
  2. Sarah Phillimore Post author

    The problem is that the decision about whether or not adoption is the right thing, is a decision made by the court after a judge/magistrates have heard evidence. So no other agency, organisation or person is going to be able to influence that decision of the court, away from the court hearing.

    If you are unhappy with the court’s decision you have to appeal against it, on the basis that the judge/magistrates got the law or facts wrong.

    Reply
  3. Mr Jefferson Bangi

    For withouts yourve permission / authorizedsations also for concerns , for swell , for I am thank you , for youre hospitality / loyalty , for I am Mr Jefferson Bangi [telephone numbers and addresses redacted – not sure what this comment is about? Please clarify] (A.s.a.p ~ urgently ,Ects.?. )
    for I’m offved by kindly to maked an officials of verbal warnings for staged 2 and 4

    Reply
  4. kim

    My childs guardian stood up in court an committed perjury. She stated on oath that she had visited my daughter in a foster care placement an she didnt. She was being questioned on why she has done nothing to check on the welfair of my child. She lied to get herself out of it. She then stated that she had no time to visit my child as she had other work prioritys. What should i do to make a complaint?

    Reply
  5. Bridie robson

    Hi i am 24 years old and helping my younger sibling with trying to oppose an adoption. The adoption was proposed in 2012 however dec 2016 still no adoption. We now have good grounds to oppose the adoption however can no longer receive legal aid. Are we right in believing the guardian has to meet with the birth mother? The last report filed was march 2011 and the court agree as long as we have enough grounds to oppose we can and we will. Any help advice anything would be great fully appreciated. Thanks bridie

    Reply
  6. Julie Lennox

    I am a grandmother of 3 beautiful children placed into foster care in 2015 by my daughter and her abusive partner . Previously myself and my other daughter took care of the children each time there was an incident between the parents . The children love us and it broke my heart to have to explain to them that they had to go on an adventure . I’ve been fighting ever since . The Cafcass guardian has never taken time to find out anything about myself . She has spoken to me for 15 mins in a contact in which she told me that any other mother would have closed the door on my daughter . She would not talk to me to find out anything . All she knew was what Social Services had told them. The children have asked continuously to come home. This woman has no interest in keeping the children with their family . She didn’t attend court to everyone’s surprise and she has never spoken to myself since. Only once since the first meeting she spoke to my daughter reluctantly in which she told my daughter she would never get her children back and she was disgusting . This is totally unacceptable so I shall complain .

    Reply
    1. Sarah Phillimore Post author

      I always urge people, if they are not happy with what has gone on or they don’t understand it, to try and get some answers. If what you describe did happen, it is wrong and should not have happened and I think you would be justified in complaining.

      Reply
    2. helensparkles

      I agree with Sarah about complaints. I would suggest you instruct your own solicitor if you have not already, this would mean you would have your own legal advice.

      The social workers have to consider family and friends carers before placing children elsewhere, sometimes those assessments need to take place whilst children are in foster care, and it sounds like your daughter and her partner placed their children in care voluntarily. From what you have said, I assume that the social work team have assessed you negatively as carers and your ability to protect the children from your daughter and her partner is a factor. One of the other factors that social workers have to assess is whether you would be able to manage contact with the children’s parents safely, this can understandably be over challenging for family and friends carers.

      The Guardian may agree with the social work assessment based on the evidence they have which wouldn’t be solely what children’s services have told them, it could be other evidence such as police reports for example. Such information is subject to data protection laws so if it isn’t about you, it can’t be shared with you without consent.

      Reply
    3. Angelo Granda

      Dear Julie Lennox, I am afraid it is up to you to protect your grandchildren against the disadvantage and the possible danger they will be exposed to on their ‘adventure’ in care. On my experience, you will find it very difficult to find a solicitor to help you once the court has made a decision and proceedings are over. Quite simply, they won’t even look into the case or the papers until 1 year is past and THEY deem themselves able to make a legal funding application and look into helping you. Then, three months to muse about things and a further six months to get to court. You might get to see an actual solicitor yourself before the date of the first hearing if you are lucky otherwise you will only see a trainee. I presume this is because of inadequate legal funding. The firms have had to cut down on staff after all they are running a business. By the time you get to court, the children will already have been irreparably harmed.

      I know one parent whose son could have died because of C.S. neglect. He was duped into signing an S20. After taking legal proceedings, he has now been offered compensation. Had he been granted permission straight away to appeal to a higher court promptly years ago, would he have saved his family from the abuse?

      His solicitor advised him the only way was to cooperate with the CS. which they reciprocated by reporting to court fraudulently that his son had improved and was thriving in care! The complaints procedures got him nowhere. The key social worker virtually confessed to (off the record) that complaints are dealt with dishonestly and the resultant report contained more distortions of truth than the original reports. Had timely legal action been advised instead of slavish cooperation, might these sufferings have been avoided?

      Now another three little children are suffering in care needlessly . It is known they will suffer emotional disturbance and will be at risk of even worse. Julie, can you remember if you were advised of a right to advocacy and were you told you could apply to be a party to the case. Can you afford to pay for a solicitor? Even if you can, the children will be traumatised already by removal.

      I hope the CS followed the legal frameworks of the children act . Cafcass are even more dysfunctional than the CS presently. Very often the Guardians don’t bother attending Court .It happened twice just recently in a case I know of. Neither Cafcass nor the CS can decide whether your daughter gets her child back but of course they can do their damndest to ensure you don’t.
      They often shatter frameworks and fiddle the system. They can act in a way which is unauthorised or prohibited by codes of official or accepted rules both child-protection and medical; it can cause harm by effecting removal without examining alternatives and without a court order which they have ample opportunity to obtain, sometimes misusing S20’s.

      I agree with you your grandchildren’s guardian has behaved disgustingly. She appears to have acted unlawfully to me and I have no hesitation in saying it!

      My questions: Will another child have to die in care before action is taken against such authoritarianism?

      How can you get your grandchildren home and protect them within relevant timescales viz. right now?

      Whether Sarah and Helen agree with me or not, they have recommended you make a complaint. As a parent ,I feel it my unpleasant duty to tell you not to waste your time. Even if, after about a year, the L.A. agrees with all your complaints about its handling of the case, it is unlikely to review the decision already made or backtrack. Also you will find yourself unable to utilise the complaints procedure fully because the case has already been to court. The final part of the official procedure is that you submit findings etc. to the LG ombudsman for its intervention but ,in practice, the ombudsman will not even investigate once a case has been in Court.
      The CPR. This resource is not set up to give specific advice to parents like you Julie. For that you should go to the Family Rights Group website on which there is a discussion forum particularly for grandparents as well as one for your daughter.

      Neither parents ,lawyers or Social Workers on here SHOULD squirm at the idea that the C.S. have acted wrongly. That can only divorce parents from reality. It is for the CS to defend itself! Parents are usually well aware of the facts and they have faced up to them squarely when they go online and find the CPR. They are not looking to be patronized, they are seeking strong support and I won’t do that to you ,Julie. I won’t refer you to a solicitor; you may already have seen one ( who recommends continued cooperation overlooking ongoing harm being caused).

      In this case, it appears immediate action in court is necessary to protect a very vulnerable family from a rogue CS department, indeed according to at least one Parliamentary spokesperson; this is a parents remedy when a case is conducted improperly. One way of instigating court action would be to apply for permission to appeal. Normally you have ,I think 21 days after completion of the case to apply. So ,if that has passed, whilst it is possible to get an out-of-time appeal, it is much more difficult. Especially if you are skint and have to rely on legal funding because you will get little help from a children’s legal panel solicitor. I don’t want to rock the boat of Sarah and Helen’s advice but feel I must. A complaint is likely to get you nowhere and neither is a solicitor for at least 12 months. What you need to is permission to appeal to get matters before a higher court and that is very, very hard, nay almost impossible alone. This does not mean I disrespect their advice.

      What families require from their advisers and /or advocates is immediate appropriate support and challenge to Local Authorities to ensure that procedural safeguards are accorded to their children and theirselves within time-scales which will rescue children involved, in particular, from significant harm. Usually they have exercised already their own judgment as to whether the children will be better off at home and they hold parental responsibility. It is absolutely clear to me that this grandparent,Julie believes the CS and Cafcass have exceeded their powers. The Children’s Act states and most experts agree that children are better cared for at home.
      In this case, we can only mutter that the department does not appear to have acted ‘unlawfully’ but if it has,Julie should consider methods of complaint open to her. This is not the direct, decisive judgment and advice which will save the poor , unfortunate, innocent children. We are reluctant to cause alarm or be overly controversial but in situations where the CS can cause massive alarm and actual physiological as well as spiritual harm to families, is it the right approach?

      To issue advice in moderate terms devoid of emotion is designed not to upset anyone but, in actual fact, our messages cause even greater upset to those ,like Julie, involved. Yes, they reply politely but then they sit back alone and collapse into despair. Their confidence is diminished and they begin to doubt their own convictions. Their hopes when coming online for support are dashed and their children continue to suffer. It appears to them that we do not care very much and that we are inclined to give the CS credibility it does not deserve. We may well know what is wrong but it is appearances that matter. These people need a resource able to confirm the CS has acted wrongly not refrain from comment.

      Primarily for the children involved, Julie’s problems are not solved. She doesn’t want them to be understated, they want their account of the facts to be heard and they want immediate, active intervention! Human beings become emotional and passionate naturally when children’s rights are abused and it is right it should be so. Particularly, they should not be adjudged non-cooperative for it. Neither should it be assumed they are unable to listen and understand what they have been told by social workers and Guardian’s..

      I am proud to have known many straightforward and compassionate social workers; they always work by the book and aim to help families. Honest ones do not fiddle. Conversely there are many bent ones identifiable by the avidity with which they seek to take possession of children; when they trample on correct procedures; by the cold, dull look in their eyes when they issue cruel diktats around contacts etc. and the pleasure with which they flaunt their power off the record. They expropriate children illicitly and proceed to maltreat them and their families. I am talking mainly about general maltreatment, yet although very rare, the possibility of physical abuse or sexual exploitation of children by social work staff cannot be ignored. In my opinion, passionate, humane responses are called for to save innocent children from these charlatans. Their actions when they dodge the requirement for a court order and abuse S20’s are well-known, for example, to this resource.

      Why do they want control of children so desperately they are prepared to skip legal requirements? Once they have possession of children, why do they take steps to conceal information about their health? What are they hiding? Why do Children’s Panel solicitors appear to condone blatant wrongdoing? If they have evidence, let them get a court order as prescribed by the Law.

      If we cannot intervene and only offer advice, then parents want to know how they can obtain immediate action. Tell them! If a court can achieve it, why refer them to the complaints procedure which we know is ineffective within relative timescales? When their human rights have been abused, tell them! The C.S. won’t admit it and it doesn’t need a Children’s Legal Panel lawyer to work it out. Any reasonable layman can see it. They need to be put into contact with a resource with its own legal specialists; let them give their opinions to back up families. They are desperate to rescue their children immediately from ongoing harm and need to know how. Tell them! A child could be dead and buried within six months. More effective advice is called for. Unfortunately there is no honest broker which will carry out this function.

      I know Sarah worries when families end up going to JFF but surely its obvious , there is little alternative for them. We can’t help them . The FRG only offer intervention in London not nationwide. It’s impossible to take on such a massive task alone. If permission to appeal were automatic ( just in the serious cases where removal occurs) the legal-funding barristers would be queuing up to fight appeals.
      So, I make the point again, permission should be automatic in proportion with the draconian action taken.

      Reply
  7. Hannah Barrs

    Please can I ask how often should a court guardian visit a parent /child foster placement?
    I’m a carer and have concerns that decisions are being made by a guardian who has only met with my parent /child placement once in the first 3 days of the beginning of the placement and not since.
    The placement has been ongoing for 10 weeks and is due to conclude soon.

    Reply
    1. HelenSparkles

      It is very often once, but the Guardian will liaise with the childcare and fostering SWs usually to find out how they are getting on. CAFCASS used to do more but this changed with the increase in care proceedings. They don’t have the capacity to do so. If you are worried about the view they may have about the child being in conflict with what you know, contact your SW.

      Reply
    2. Sarah Phillimore Post author

      I am afraid that due to cuts to the service, guardians do have less time to visit now. They generally have a lot of cases to deal with. But if you are worried, raise it with the Guardian directly or the child’s social worker. If there are no reported concerns about the placement or the child’s behaviour in the placement, then I wouldn’t have thought there is a need for very frequent visits.

      Reply
  8. Angelo Granda

    Guardians are very busy.They may not visit again BEFORE making final recommendations UNLESS you contact his or her legal representatives and specifically request a further visit.
    If you have solicitors,you should ask them to make the request otherwise make contact yourself. Keep a written record of everything said at any meetings also, if you are wise..

    Reply
  9. Hannah Barrs

    Thank you all for your responses.
    So far the guardian has still not read my daily reports which give a clear insight into how the placement is going. I have sent numerous emails to the social worker detailing my many concerns which she has assured me have been passed on to the guardian. The guardian has neither acknowledged nor responded to the concerns.
    I fear she is unduly ‘parent’ focused as apposed to child focused which I believe is more appropriate.
    If she cannot visit the placement I feel she should at least have some correspondence with myself as a front line professional to be able to gain a clear picture of circumstances.

    Reply

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