Tag Archives: CAFCASS

CAFCASS Guidance on working with Children and Gender Identity

The CAFCASS Guidance Working with Children and Gender Identity January 2023 is guidance for children who are not in care. It links to guidance for children who are in care – Trans Youth in Care; a Toolkit for Caring Professionals – but this is dated 2017 and refers to Mermaids and the often ridiculed ‘Genderbread Person’. It’s clearly out of date and requires urgent revision.

A document written in 2017 of course cannot comment on the NHS guidelines, the Cass Review, Bell v Tavistock, revised guidance for schools or the recent decisions of various jurisdictions to move away from the ‘affirmative path’ of transgender care for children advocated by WPATH.

But a document with its final draft in January 2023 has no excuse to skate over or simply ignore all that we have learned in the last five years. This is very poor guidance. In essence, it adopts contested political narratives as if they were truth and is going to risk not only the welfare of children but also the professional reputations of those who rely on it.

I was sent a copy of this guidance by a very concerned practitioner. I cannot link to it as apparently CAFCASS will not be publishing it on their website in case it is ‘taken out of context’. This is not acceptable. Parents, lawyers and judges need to know the content of guidance that CAFCASS is requiring its practitioners to follow, particularly in an area so complex and so contested as this.

I will discuss it here, and raise my concerns with the President of the Family Division.

EDIT – thanks to Gender Parity UK for publishing a link to the guidance

Assumption of contested narrative as truth

The introduction makes the following comment

Transgender/gender expansive people (as well as LGB people) have existed since time immemorial. Therefore, any perception that being transgender/ gender expansive is a social construct or a new phenomenon is factually incorrect. Gender expansive children have existed in all times and all cultures of which records remain.

The Guidance relies on the following resources to make this claim – Trans Historical: Gender Plurality before the Modern – Greta LaFleur, Masha Raskolnikov, Anna Kłosowska and – Histories of the Transgender Child Paperback –2018 by Julian Gill-Peterson

This is highly controversial and immediately calls into question the asserted aim of the Guidance being to ‘support’ children rather than “specifically not to direct the child down any particular path”. It is not a claim that should responsibly by made in professional guidance, without at least some attempt to comment upon the recent and rapid surge in children seeking referrals to the Tavistock. This points to social contagion, rather than a diagnosis of gender dysphoria. Referrals to the Gender Identity Development Service (GIDS) at the Tavistock have shown a staggering increase in recent years; from just 97 in 2009/10 to 2,519 in 2017/18.

From 2014/15 to 2015/16, referrals increased by over 100% and from 2015/16 to 2016/17 they increased by 41%. Ages at referral seen by the service ranged from 3 to 17 years old. As Transgender Trend commented, the majority of the children were registered female at birth. This is an unexplained ‘flip’ from earlier years, where the majority of children registered were male.

The stark figures about the increase in female referrals have been explained by two experienced clinicians in this way:

We posit that there are multiple, interweaving factors bearing down on girls and young women that have collided at this particular time causing a distress seemingly related to gender and their sex. These factors comprise both the external world (i.e. the social, political and cultural sphere) and the internal (i.e. the emotional, psychological and subjective). The external and internal interact and feed each other.

Ignoring current evidence

You will search in vain for any discussion about ‘detransitioners’ (those who regret having undergone medical or surgical transition and revert to a gender identity which is in line with their sex observed and recorded at birth) or the phenomenon of ‘rapid onset gender dysphoria’ which points to the likelihood that social contagion is driving much of the ‘gender expansiveness’ of in particular teenage girls.

Of the many shocking aspects of Hannah Barnes’ forensic dissection of what went wrong at the Tavistock in her book ‘Time to Think’, the most concerning for me were the bleak statistics about the children treated there – 70% of the children had more than 5 associated co-morbidities such as abuse, depression, self-harm, suicide attempts, anxiety, eating disorders, ADHD or bullying. 35% of referrals involved children with Austic Spectrum Disorders – experienced by less than 2% of children in the general population. 25% of referrals involved children who had spent time in state care – compared to 0.67% of the general population. Children referred were 10 times more likely to have a parent registered as a sex offender than the general population.

You will search the guidance in vain for any discussion about this. There is simply a short comment that practitioners need to ‘acknowledge and assess the additional complexity and vulnerability a transgender child may present.’

Poor analysis of safeguarding

The Guidance identifies the main issues around ‘safeguarding’ as

Parental responses
Parental disputes and differing views
Homelessness
Discrimination
Lack of health and social care support and progression through the care pathway
Lack of CAMHS provision
Suicidality and self – harming behaviors
Hate crime
Bullying/ difficulty with peers
Disruption or cessation of formal education
Conversion therapy- direct or indirect
Online safety

This again underscores that this guidance operates from a presumption that transition for children should be affirmed. It makes no reference to the risks that flow from working with a cohort of children who are likely to have a significant number of co-morbidities or may be victims of homophobia. We already have a clear example of the dangers of such a blinkered approach in the case of Sonia Appleby, the Named Professional for Safeguarding Children and the Safeguarding Children Lead at the Tavistock. She raised a complaint at an employment tribunal, that Tavistock management directed that safeguarding concerns should not be brought to her attention and clinicians were discouraged from reporting safeguarding concerns to her, over allegations around Ms Appleby’s ‘transphobia’. In September 2021 Ms Appleby was awarded £20K as damages for “significant” injury to her feelings. The tribunal concluded that the trust’s handling of the matter “prevented her from proper work on safeguarding”.

In line with the Guidance’s presumption of affirmation, it is noted that

The majority of parents and families will want to do all that they can to support and act in the best interests of their child when they discover their child is transgender or needs to explore their gender identity

Which raises an interesting question about how CAFCASS intends to treat those parents who are less than delighted that their child is being put on a pathway to medical and surgical transition. The Guidance makes the claim that ‘Evidence shows that young people who have parents/wider family who are supportive of their transgender identity are more likely to have good mental health, including improved outcomes’ but provides no citation for this assertion.

The Guidance notes, ominously

It may be necessary to use public law to safeguard and protect the child and transgender children are no less at risk of abuse than any other child. In fact, their transgender status often makes them at a higher risk where a parent/carer is not a protective factor.

There is reference to ‘conversion therapy’ as ‘morally wrong’ but with no countervailing discussion of the recognition by the Cass Review that there was a need for ‘talking therapies’ as a first resort, rather than affirmation of a medical pathway. This makes me concerned that parents who do not immediately ‘affirm’ their child as ‘truly transgender’ risk finding themselves viewed by CAFCASS as abusive parents

Signposting to outdated, unreliable and dubious sources

The introduction at page 3 signposts the practitioner to Professor Spack’s Ted Talk. Professor Spack is a Consultant Paediatric Endocrinologist explaining his work helping transgender children and described as ‘one of the world leaders in this field… ran the multi-disciplinary Gender Identity Service at Boston’s Paediatric Hospital in the USA.’ The first thing that jumps out is that this Ted Talk dates from November 2013, nearly ten years ago. The notion promoted by Professor Spack that puberty blockers are wholly reversible and simply give a child to think is not supported by the Cass Review interim report. Various judges have commented on the concern that rather than give children ‘time to think’, puberty blockers almost inevitably sets them on a path to cross sex hormones, with the consequent risks to fertility and adult sexual function.

The majority of children who are permitted to go through a natural puberty, will desist from any desire to ‘change sex’. Anyone who is making recommendations about the welfare of ‘gender expansive’ children needs to know and understand this. They also might benefit from understanding a little more about the Boston Children’s Hospital and the recent unease about it’s practices, not least double mastectomies carried out on girls as young as 12.

As Professor Levine noted in 2020:

A 2017 study from the Boston Children’s Hospital Gender Management Service program – 23 – reported that: “Consistent with the data reported from other sites, this investigation documented that 43.3% of patients presenting for services had significant psychiatric history, with 37.1% having been prescribed psychotropic medications, 20.6% with a history of self-injurious behavior, 9.3% with a prior psychiatric hospitalization, and 9.3% with a history of suicide attempts.

Mermaids and Stonewall are listed as useful resources. It is difficult to see how this guidance can in good faith signpost its practitioners in this way. The concerns about Stonewall are now exhaustively documented and very well known and yet CAFCASS remains a Stonewall ‘Diversity Champion’. Mermaids is currently under investigation by the Charity Commission. The inquiry opened in November 2022 and will seek to determine ‘whether the charity’s governance is appropriate in relation to the activities the charity carries out, which involve vulnerable children and young people, as well as their families.’

It is astonishing that CAFCASS would direct its practitioners to an organisation under investigation in this way. But regardless, It is clear that Mermaids heavily promotes ‘affirmation’ and the medical transition of children at ever younger ages. Its views about capacity and consent was expressed in this way in 2019, attempting to erase any distinction between those children who are Gillick competent and those who are not:

….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.

.

The guidance offers some discussion on the thorny issues of of capacity and consent but any benefit in this discussion is significantly compromised when signposting practitioners to those organisations who do not accept there is any question mark over the transitioning of children – or worse, that any attempt to discuss concerns is unacceptable bigotry

Conclusion

I am not demanding that CAFCASS adopt a particular political view/narrative. I am not denying that there are now and always have been, a small percentage of people who are very unhappy with their bodies and seek relief by being seen as the opposite sex. These people should not face abuse or discrimination. I agree that rigid conformity to sex based stereotypes is often harmful and that children who reject those stereotypes should be protected.

But I also know that we all have only one body and there are clear limits to what can be achieved to change it via medication and surgery. It is simply not possible to ‘change sex’. I hope very much that I am wrong regarding my fears about the welfare of children who undergo irreversible and unevidenced medical treatment. I hope that the research set in motion by the Cass Review will show that these children were not simply part of an unregulated medical experiment in pursuit of an adult agenda. I hope that the coming years do not usher in litigation from those children who were not protected by adults who should have known better. I hope that the lives of a generation of children have not been blighted.

But we are still some time away from any reliable evidence regarding childhood transition. While we wait, we are all entitled to ask that agencies such as CAFCASS, whose reports are highly influential in both private and public law children cases, provides guidance which is based on evidence and which acknowledges where the evidence is shaky – and which accepts that issues of ‘gender incongruence’ or ‘gender expansivity’ in children may involve safeguarding issues, such as promoting homophobia or putting a child on a medical pathway which is potentially irreversible and lacking any compelling evidence base.

This Guidance is not fit for purpose and puts both children and practitioners at risk of harm and reputational damage. I hope it will be withdrawn and significantly revised. Unless and until it is, then I will treat all recommendations by CAFCASS in this area in any case where I am instructed, with significant scepticism.

Directly involving children in the court process

In care proceedings children are represented by a solicitor and a guardian – this is called the ‘tandem model’ of representation. The solicitor may also instruct a barrister for certain court hearings. The child’s solicitor takes instructions from the guardian about what to do in the child’s best interests, unless the child can show that he/she has enough understanding to give their own instructions. This post considers various options open to the child who wants to directly express their wishes and feelings.

I don’t agree with what my guardian is saying and I want my own solicitors

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

Representation of children in proceedings is dealt with by Part 16 of the Family Procedure Rules.
The key test about deciding if a child has ‘sufficient understanding’ remains Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112, which is discussed in the case of CS v SBH, link below.
For a case where the Judge decided a 14 year old child was able to instruct his own solicitor, see Z (A Child – Care Proceedings – Separate Representation) [2018] EWFC B57 (29 June 2018)
A child can also write a letter to the judge or ask to speak to the judge directly – see discussion below.

There is a useful case from the Court of Appeal W (A Child) [2016] EWCA Civ 1051 which discusses the relevant test to see if a child is capable of instructing their own solicitors. The Court of Appeal decided that the Judge at first instance had been wrong not to allow a 16 year old girl to have the solicitor of her choice; there was a confusion over issues of ‘welfare’ and ‘understanding’.

The Court of Appeal agreed the relevant rule of the FPR to be applied was Rule 16.29 which sets out that when a solicitor is appointed for the child, the solicitor must represent the child in accordance with the instructions received from the guardian. If the solicitor thinks that the child wants to give instructions which will conflict with those received from the guardian and that the child is mature and understands enough to give his/her own instructions, the solicitor MUST conduct proceedings in accordance with the child’s instructions (rule 16.29 (2))

If the child wants to terminate the appointment of their solicitors, the child may apply to the court and the Judge will consider this application and the solicitor and the guardian will have a chance to have their say (rule 16.29 (7)).

See further the decision in CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019) which considered how the FPR may differ depending on whether or not there was a new set of proceedings or that the child wished to instruct new solicitors within existing proceedings. The court set out at para 64 of the judgment the factors to consider about whether or not a child was able to instruct solicitors in an appeal:

The level of intelligence of the child
The emotional maturity of the child.
Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state.
Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role.
Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position…. An unwise decision does not mean the child does not understand although it will no doubt depend on the extent to which the child’s view diverges from an objectively reasonable or wise decision.
Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. Care should be taken not to impose too high a level of understanding in this regard; many adults with capacity would not and we should not expect it from children. An ability to understand that their solicitor put their case but also has duties of honesty to the court, an ability to understand that the judge makes a decision based on an overall evaluation of the best interests of the child which balances many competing factors; the ability to understand that they might attend court, could give and evidence, could read documents; the ability to recognise the stress of exposure to the court process and the arguments between others. The presence of all of these would be powerful signs of a high level of understanding. Conversely the absence of them or evidence of a distorted understanding would be contra-indicators.
The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm.

I want to talk directly to the Judge

There is a very helpful article here from Family Law Week which discusses how Judges have become more willing recently to meet children and talk to them. However, the Judge must not use this meeting to collect evidence from the child, or test the existing evidence, because that that has to be done in court with everyone present. But this meeting will allow a child to tell the Judge what he or she wants and will allow the Judge to explain what the court does.

Such a meeting between Judge and child is not intended to undermine or displace the work of the guardian, but it is hoped that such meetings could help the child understand what is going on and feel reassured that people are listening.

Obviously, for very young children this could simply be overwhelming and not very helpful but it will be a matter for the individual Judge in each case whether he or she thinks meeting the child is the right thing to do.

Familly Justice Council Guidelines

In April 2010 the Family Justice Council published guidelines for Judges who want to speak to children. The purpose of the guidelines is:

… to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge’s task.

What happens when meeting the Judge goes wrong?

For an example of the problems that can arise if a Judge doesn’t follow the guidelines, see the case of KP in 2014. Although this was a case involving the Hague Convention, (a dispute between separated parents who wanted the child to live in another country) the points raised apply to any situation when a Judge speaks directly to a child:

Despite having great respect for this judge, who is highly experienced in the conduct of proceedings where the voice of the child needs to be heard, our conclusion is that on this occasion the conduct of the judicial interview did indeed fall on the wrong side of the line. Having summarised the submissions of Mr Turner and Mr Gupta, with which we agree, we can set out the reasons supporting this conclusion in short terms as follows:

i) During that part of any meeting between a young person and a judge in which the judge is listening to the child’s point of view and hearing what they have to say, the judge’s role should be largely that of a passive recipient of whatever communication the young person wishes to transmit.

ii) The purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say. The meeting is primarily for the benefit of the child, rather than for the benefit of the forensic process by providing additional evidence to the judge. As the Guidelines state, the task of gathering evidence is for the specialist CAFCASS officers who have, as Mr Gupta submits, developed an expertise in this field.

iii) A meeting, such as in the present case, taking place prior to the judge deciding upon the central issues should be for the dual purposes of allowing the judge to hear what the young person may wish to volunteer and for the young person to hear the judge explain the nature of the court process. Whilst not wishing to be prescriptive, and whilst acknowledging that the encounter will proceed at the pace of the child, which will vary from case to case, it is difficult to envisage circumstances in which such a meeting would last for more than 20 minutes or so.

iv) If the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.

v) The process adopted by the judge in the present case, in which she sought to ‘probe’ K’s wishes and feelings, and did so over the course of more than an hour by asking some 87 questions went well beyond the passive role that we have described and, despite the judge’s careful self-direction, strayed significantly over the line and into the process of gathering evidence (upon which the judge then relied in coming to her decision).

vi) In the same manner, the judge was in error in regarding the meeting as being an opportunity for K to make representations or submissions to the judge. The purpose of any judicial meeting is not for the young person to argue their case; it is simply, but importantly, to provide an opportunity for the young person to state whatever it is that they wish to state directly to the judge who is going to decide an important issue in their lives.

I want to give evidence in court

The courts used to be reluctant to agree that children should give evidence in court, but there has been a shift in attitude more recently as we see with the decision of the Supreme Court in re W [2010] UKSC.

When deciding whether or not a child should come to court and give evidence, the essential test is whether justice can be done without further questioning of the child. To answer this question, the court looks at two issues:

The advantages that the child giving evidence will bring to the determination of the truth.
The damage giving evidence may do to the welfare of this or any other child.

The following factors will help the court to weigh up these two issues.

The fair and accurate determination of the truth

The issues it is necessary for the court to decide;
The quality of the evidence already available, including whether there is enough evidence to make the findings without the child being cross examined;
Whether there is anything useful to be gained by oral evidence in circumstances where the child has not made concrete allegations;
The quality of any ABE interview and the nature of the challenge; the court will not be helped by generalised accusations of lying or a fishing expedition. Focused questions putting forward an alternative explanation for certain events may help the court to do justice;
Age and maturity of the child and the length of time since the events.

Risk of harm to the child

Age and maturity of the child and the length of time since the events;
The child’s wishes and feelings about giving evidence. An unwilling child should rarely if ever be obliged to give evidence and, where there are parallel criminal proceedings, the child having to give evidence twice may increase the risk of harm;
The level of support the child has and the views of the Guardian and those with parental responsibility;
The fact that the family court has to give less weight to the evidence of a child who is not called may be damaging to the child;
The court is entitled to have regard to the general understanding of the harm that giving evidence may do to a child as well as features peculiar to the child and case under consideration. The risk, and therefore weight, will vary from case to case.

The Family Justice Council issued guidance on children giving evidence in 2012.

For an interesting case where Judges in Court of Appeal disagreed with each other about how the Re W principles had been applied, see S (Children) [2016] EWCA Civ 83 (09 February 2016)

In the case of R (Children) [2015] EWCA Civ 167 a 14 year old was successful in her appeal against the court refusing to let her give evidence in support of her father, saying he had not abused her. Briggs LJ commented at para 36:

To my mind it is the absence of any real recognition of the basic importance of the cross-examination of GR to a fair trial of the serious issues in this case, in the judge’s judgment or even in the respondents’ submissions on this appeal, that makes it necessary that the appeal should be allowed. I would regard the welfare implications of the choice whether to permit her to give oral evidence and to be cross-examined as being evenly balanced. The risk of harm which the process may cause to this bright and articulate fourteen year old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her.

I want to tell my story to the press

In 2003 Munby j (as he then was) heard the case of Angela Roddy. She was 16 years old and she wanted to tell her story to the press about becoming pregnant at 13 and then having her baby taken into care. She was allowed to be interviewed but the identities of her baby (Y) and Y’s father (X) would remain confidential.

Munby J commented at para 56 of the judgment:

56.The courts must face reality. We must, as Lord Scarman said, be sensitive to human development and social change. Angela may not yet be quite 17 years old but she is a young woman with a mind of her own and, as her solicitor B has said, a mature and articulate young person. We no longer treat our 17-year-old daughters as our Victorian ancestors did, and if we try to do so it is at our — and their — peril. Angela, in my judgment, is of an age, and has sufficient understanding and maturity, to decide for herself whether that which is private, personal and intimate should remain private or whether it should be shared with the whole world. She is what Ward LJ described in In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 at p 30 as a “competent teenager taking [her] story to the press”. She is, to use the language of Woolf J (as he then was) in Gillick v West Norfolk and Wisbech Area Health Authority [1984] QB 581 at p 596, “capable of making a reasonable assessment of the advantages and disadvantages” of what is proposed.

57.In my judgment (and I wish to emphasise this) it is the responsibility — it is the duty — of the court not merely to recognise but, as Nolan LJ said, to defend what, if I may respectfully say so, he correctly described as the right of the child who has sufficient understanding to make an informed decision, to make his or her own choice. This is not mere pragmatism, although as Nolan LJ pointed out, any other approach is likely to be both futile and counter-productive. It is also, as he said, a matter of principle. For, as Balcombe LJ recognised, the court must recognise the child’s integrity as a human being. And we do not recognise Angela’s dignity and integrity as a human being — we do not respect her rights under Articles 8 and 10 — unless we acknowledge that it is for her to make her own choice, and not for her parents or a judge or any other public authority to seek to make the choice on her behalf.

Reform Proposals

In July 2014 Simon Hughes announced at the Voice of the Child Conference the government’s proposals to permit all children over the age of 10 an opportunity to speak directly to the Judge. He said:

Children and young people must by law have their views heard before decisions are made about their future, and where decisions are made that will impact them. At the moment, it is still too often that their views are not heard. Or that the law is interpreted to mean that others can make a assumption about the view of the child or young person – often for the best of intentions and acting in their interest, but nevertheless with the outcome that the child or young person does not feel that their own distinct voice was heard.

I therefore want to announce that it is the intention of the Ministry of Justice, and therefore the government, that we move as soon as is practical to apply in all our family justice proceedings in England and Wales where children and young people are concerned the policy that it will be the normal practice, the norm, that, from the age of 10, children and young people involved in public or private law family justice proceedings before the courts will have access to the judge, in an appropriate way which reflects their feelings and wishes to make clear their views as to what is the best resolution of the family dispute in their interest.

Children and young people of 10 and over will therefore be given the chance to make clear their views in person or if preferred in another way. We will also work with the mediation sector to arrive at a position where children and young people of 10 years old and over have appropriate access to mediators too in cases which affect them.

The Minister also agreed with the following:

Children and young people should be given the opportunity to meet and communicate with the professionals involved with their case including workers from the Children and Family Court Advisory and Support Service ( CAFCASS), social workers, the judges and legal representatives; every child of sufficient age and ability should have the opportunity of meeting with the judge overseeing their case; every child should have the opportunity through Cafcass of submitting their views directly to the judge in writing; all children should be able to communicate their wishes and feelings to the judge; children and young people should be kept informed about the court proceedings in an age appropriate manner, kept informed of the stage their case has reached, and contacted prior to the first hearing, and have the opportunity of giving feedback through email, text, telephone or written form.

EDIT However, as of the time of writing this edit (Nov 2015) nothing further has been heard of these reforms and it is likely they have been kicked into the long grass.

FURTHER EDIT in 2018 it was confirmed that there had been no movement on these reform proposals and it is likely they will be shelved.

A 1 in 5 failure rate is not cause for celebration.

Cafcass care application study 2014

Cafcass recently published some research that they claimed showed:

that five years on from the tragic Baby Peter Connelly case local authority social workers are making timely and well prepared care applications for children at risk.

The final sample population comprised: 304 Guardians; 391 care applications; and 684 children. The guardians were asked a number of questions:

Whether the timing of the care application was appropriate, premature or late;
Whether there was any other course of action which, in the view of the Guardian, the local authority should have taken before issuing proceedings;
Whether the local authority met the requirements placed on them by the revised PLO; and
Whether new or updated assessments had been commissioned prior to the making of the application and, if so, whether the assessments were in the child’s best interests.

The key findings of the research were:

Guardians believed there was no other course of action [than making an application] available to local authorities in 84% of cases.
In 84% of cases Guardians thought that the local authority had met or partially met the requirements of the revised Public Law Outline (PLO); and in 32% of the cases where Guardians indicated that the local authority had not met the requirements they considered this was appropriate.
Neglect remains the principal category of concern for children who were, or had been, subject of a child protection plan; and was identified by Guardians as being the principal trigger for care applications where the child was not subject of a plan.
Guardians considered that the timing of the application was appropriate in 54% of cases.

This was reported by Community Care as very positive:

“It is fantastic news that Guardians consider that, in general, local authorities are bringing the right cases to court, in a timely way and with the cases being well prepared,” Cafcass chief Anthony Douglas said.

Is ‘fantastic’ really the mot juste here?

Failure to consider other options

The most common alternative to care proceedings suggested was further assessment but it is clear that there was a wide range of options the guardians felt had not been explored when they should have been.

Table 3 Category of Guardians’ views on whether an alternative course of action should have been taken

Further assessment 20
Family group conference 18
Temporary kinship placement 12
Child protection plan 11
Referral to other services 11
Section 20 accommodation 6
Parenting education programme 5
Respite care 2

Failure to meet the requirements of the PLO

The 84% of cases where the PLO requirements were met or ‘partially met’ masks a very worrying percentage of those cases where the LA had ‘entirely met’ the requirements of the PLO – in only 43% of cases.

The guardians considered failure to meet the requirements of the PLO appropriate in only 1/3rd of their cases.

No letter before action

A letter before proceedings was sent in only 63% of cases. Where a letter was not sent the guardian’s thought this was in the child’s best interests in only 45% of cases. This is an important document which is meant to ‘enable the parents to obtain legal assistance and advice, prior to a meeting with the local authority, the intention of which is either to deflect proceedings or, at least, to narrow and focus the issues of concern’.

Of course, in some situations, such as emergency there won’t be time to send such a letter. However, given that parents often complain they do not understand why the LA is making an application for care proceedings, this seems a significant and unfortunate failure.

It is not clear from the report what percentage of the 37% of cases where no letter was sent were ’emergencies’.

Timing of the application

A significant proportion of applications – 46% – were not made at the right time. 3% the guardians were unsure about, 5% were felt ‘premature’ and 39% were ‘late’. The report comments:

Cases where children were accommodated for extended periods also featured, either under s20 or with unregulated carers, as did cases where the local authority was seen to have delayed between holding legal planning meetings or other pre-proceedings meetings, despite parental behaviours not having changed. In some cases the Guardian simply identified a lack of urgency in bringing the case to court.

A cause for celebration?

The report reveals:

approximately 1 in 5 cases where the guardians thought the LA had failed to fully consider alternatives to making the application for a care order;
the majority of all applications (57%) were not fully PLO compliant and this was considered inappropriate in 2/3rds of the non compliant cases;
a significant proportion of parents didn’t get a letter before action (37%) and in the majority of these cases the guardians didn’t think this was in the child’s best interests; and
a significant proportion of the applications (46%) were not made at the right time and 39% were made too late.

Community Care are silent as to what exactly was going wrong in these cases, quoting instead Annie Hudson, the chief executive of The College of Social Work.

“These survey results are encouraging. They testify to the expertise and commitment of local authority social workers and guardians to making sure that children’s needs are at the heart of the complex and necessarily finely balanced family justice system decision making process.”

The use of the words ‘fantastic’ and ‘encouraging’ in response to this report are odd. It seems an attempt to put a weirdly positive spin on some not particularly encouraging statistics. The case law couldn’t be clearer. Care plans for adoption must be subject to strict scrutiny and holistic evaluation of all realistic options. How is this requirement met if the guardian thinks there is a hole in the assessment process? If a kinship placement was available? If the parents should have been referred to other services?

We don’t know what kind of care plans these cases involved. We don’t know the outcomes of the proceedings – did the children go home? Kinship care? Adoption? What was the impact on the children and families if they were the nearly 1 in 5 cases where the guardians thought the care proceedings were initiated without proper consideration of the other options? What’s the impact on the children of being part of the 39% of cases where applications were made ‘too late’ ?

Without answers to these questions, maybe the commentators should row back a little from words such as ‘fantastic’ and ‘encouraging’.

There is a need to consider more fully the impact of judgments such as that in Surrey CC v AB and others in 2014 where there was considerable criticism of the ‘systemic failure’ of the LA and the very damaging impact of delay (para 72) and not keeping an open mind about placement (para 74).

This case was decided in March 2014. So time enough for lessons to be learned?

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.