Tag Archives: welfare checklist

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. 

 

What do we mean by the ‘welfare stage’ of care proceedings?

Care proceedings involve a two stage legal test

As we discussed in another post about ‘threshold criteria’,  a court can only make a care or supervision order if it is satisfied it has passed both parts of a two stage test –

First – that the necessary ‘threshold criteria’ must be found proved on the balance of probabilities  in order to show that the child has suffered or is at risk of suffering significant harm.

Second – is it is in the best interests of the child to make a care or supervision order?

This second stage is often called ‘the welfare stage’ because the court has to focus on what order would best meet the child’s interests; or in other words, what does the child’s welfare require the court to do?

It used to be called the ‘disposal stage’ but it was soon noticed that this was an unpleasant way to refer to children’s proceedings. ‘Welfare stage’ is a much more appropriate way of signposting that the focus should now be on what the child needs.

Therefore, even if the court is satisfied a child has suffered significant harm, a care order and removal from the parents does not automatically follow. For example, if the parents have engaged with the LA and are working to change things for the better, the court may make no order or only a supervision order.

Or the court may make a child arrangements order (previously ‘residence order’) or Special Guardianship order in favour of another family member, which may mean the parents can carry on having direct contact with the children after the final hearing.

 

What does the court need to consider when looking at the ‘welfare stage’ ?

The fundamental principle behind the Children Act 1989 can be found in Part 1, section 1. This states that when the court is determining a question with regard to a child’s upbringing:

The child’s welfare shall be the paramount consideration

We need to unpick what is meant by that. Section 1(2) reminds the court of the principle of ‘no delay’ i.e there is an assumption that any delay in making a decision is likely to harm the child’s welfare. You can argue that ‘planned and purposeful’ delay could actually be a good thing for the child – for example, you need more time to finish assessments of family members who could care for him. But you will need to remember the impact of the new Public Law Outline which sets a strict 26 week timetable for care proceedings to finish.

Section 1(5) sets out the ‘no order principle’ – the court should only make an order if this would be better for the child than no order at all. This is in line with the principle of ‘least intervention’ and the requirements of Article 8 of the ECHR.

Section 1(3) is very important as this sets out the ‘welfare checklist’ which is a reminder to the Judge of all the things he or she needs to show have been considered in the judgment. If a Judge makes a decision about a case but can’t show how the welfare checklist was considered, this could make the judgement vulnerable to an appeal.

 

The Welfare Checklist under the Children Act 1989

  • the ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding)
  • his physical, emotional and educational needs
  • the likely effect on him of any change in his circumstances
  • his age, sex, and background and any characteristics of his which the court considers relevant
  • any harm which he has suffered or is at risk of suffering
  • 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
  • the range of powers available to the court under this Act in the proceedings in question

 

The welfare checklist under the Adoption and Children Act 2002

When the court is considering placement or adoption orders, the court must also consider a similar checklist in section 1(4)(a) to (f) of the 2002 Act

  • the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding)
  • the child’s particular needs
  • 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
  • the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant
  • any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering
  • 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
    • the likelihood of any such relationship continuing and the value to the child of its doing so
    • 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
    • the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

 

The warnings from Re B-S (Children) [2013]

The recent case of Re B-S (Children) [2013] contained stern warnings from the Court of Appeal about the importance of good clear analysis about what was in a child’s best interests, particularly when the court was thinking about endorsing a care plan that would lead to adoption. 

The key points of the judgment can be summarised as:

  • Adoption is the ‘last resort’ [para 22]
  • the starting point needed to be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together [paras 18]
  • the least interventionist approach is to be preferred [para 23]
  • The child’s interests are paramount, but the court must never lost sight of the fact that these interests include being brought up by his/her natural family [para 26]
  • There must be proper evidence from the LA and the Guardian that addresses all options which are realistically possible and must contain an analysis of the arguments for and against each option.[para 34]
  • The court then ‘must’ consider all available realistic options when coming to a decision; [para 27, 44]
  • That the court’s assessment of the parents’ capacity to care for the child should include consideration of what support was available to help them do so [ para 28]
  • The LA cannot press for a more drastic form of order because it is unable or unwilling to support a less interventionist form of order; it is their obligation to make the court order work [para 29]
  • The Court of Appeal made it clear that it was ‘essential’ that a decision was made after a proper and thorough analysis of  all relevant evidence. There was a real danger of not making the right decision if the court took a ‘linear’ approach to the options, i.e rejecting option A, then moving on to option B etc.

They said at paragraph 44 of the judgment:

“We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.”

The court also made it clear that proceedings could take longer than 26 weeks if more time was needed to resolve a case justly. See paragraph 49.

Suesspicious minds offers a good analogy to show us why  ‘linear evaluations’ of evidence can be so dangerous in this blog post