In a recent decision of the High Court, Mr Justice Keehan considered the extent to which, if at all, the Court has the power to appoint CAFCASS to undertake work with and advise non-subject, non-party children.
The facts of the case are slightly unusual albeit not entirely unfamiliar. The Local Authority brought proceedings in respect of child X and one matter relied upon in its threshold were allegations of sexual abuse by child AB, a non-subject and non-party child, that AB had been the victim of sexual abuse perpetrated by the father of child X. The father disputed the allegations and made an application for AB to give evidence so that her allegations could be challenged.
The question for the allocated Circuit Judge was who should undertake an assessment of and enquiries with AB to assist the Court in determining whether AB should give evidence in the proceedings relating to X.
Various options were considered including assessment by a Social Worker from the applicant Local Authority, a Social Worker from the different local authority with whom AB and her family had involvement, an Independent Social Worker or CAFCASS.
The Circuit Judge initially directed that CAFCASS, but not the Children’s Guardian appointed for X, undertake the piece of work required. Unsurprisingly, perhaps, CAFCASS objected on the basis that the direction fell outside the statutory functions of the service.
Recognising the issue to be of wider general importance to family proceedings, the Circuit Judge referred the case to Mr Justice Keehan as the Family Division Liaison Judge for the Midland Circuit.
The Statutory Framework
In paragraphs 13 – 21 of his judgment, Mr Justice Keehan considered the relevant statutory framework including section 12 of the Criminal Justice and Court Services Act 2000, section 7 and 41 of the Children Act 1989, and rules 16.3 and 16.4 of the Family Procedure Rules 2010.
Particular focus was paid to the provisions of section 12 of the Criminal Justice and Court Services Act 2000 which states:
"Principal functions of the Service.
(1) In respect of family proceedings in which the welfare of children [other than children ordinarily resident in Wales] 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.
(2) The Service must also make provision for the performance of any functions conferred on officers of the Service by virtue of this Act or any other enactment (whether or not they are exercisable for the purposes of the functions conferred on the Service by subsection (1)).
(3) Regulations may provide for grants to be paid by the Service to any person for the purpose of furthering the performance of any of the Service's functions.
(4) The regulations may provide for the grants to be paid on conditions, including conditions—
(a) regulating the purposes for which the grant or any part of it may be used,
(b) requiring repayment to the Service in specified circumstances.
(5) In this section, "family proceedings" has the same meaning as in the M1Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the M2Children Act 1989, but—
(a) references to family proceedings include (where the context allows) family proceedings which are proposed or have been concluded"
The Local Authority argued that on a statutory construction, s.12 of the Criminal Justice and Court Services Act 2000 cannot be read to limit or restrict the functions of CAFCASS to the subject child. Four aspects of the statutory and FPR provisions were relied upon, namely:
i) s.12(1)(b) provides that it is a function of Cafcass to "give advice to any court about any application made to it in [family] proceedings";
ii) r.16.20(2) provides that "the children's guardian must also provide the court with such other assistance as it may require";
iii) paragraph 6.1(b) of PD16A provides "obtain such professional assistance as is available which the children's guardian thinks appropriate or which the court directs must be obtained"; and
iv) paragraph 6.6(f) of PD16A provides the children's guardian must advise the court on "any other matter on which the court seeks advice".
The Local Authority also relied on three authorities, none of which, however, dealt directly with the question in point.
CAFCASS argued that the subsections of s.12 of the 2000 Act should not be read disjunctively with particular reference to section s.12(1)(c), which "make provision for the children to be represented in such proceedings" which was relied upon to argue that the role of CAFCASS is limited to the subject child of the proceedings. The point was also made “forcefully” that “it is the function of local authorities' children services departments, and not CAFCASS, to be responsible for the safeguarding of children generally. The duty of Cafcass to safeguard children is owed to those who are the subject of family proceedings.”
Mr Justice Keehan rejected the Local Authority’s construction of section 12, noting that such an interpretation would effectively place no limit on the work or the role a court could direct CAFCASS to undertake.
He noted that there was no reported authority on the interpretation of section 12 of the 2000 Act in respect of the scope of the function of CAFCASS.
In paragraphs 41 – 44 of his judgment, Mr Justice Keehan concluded:
“In respect of whether the subsections of s.12 should or should not be read disjunctively, I note that:
i) the words 'or' do not appear after subsections (a), (b) or (c); and
ii) neither does the word 'and' appear after subsection (c).
It is in my judgment, however, significant that s.12(1) reads "it is a function of the Service to" followed by subsections (a) to (d). If the subsections had been intended by Parliament to be read disjunctively, I would have expected the word 'functions' to appear in s.12(1). The use of the word 'function' in the singular leads me to conclude that subsections of s.12(1) are not to be read disjunctively but instead are to be read conjunctively. Since one part of that function is to 'make provisions for the children to be represented in the proceedings', I am persuaded that the function and role of Cafcass pursuant to s.12 of the 2000 Act is limited to the subject child or children of the proceedings.
Furthermore, I agree with and accept the submission made on behalf of Cafcass that the opening words of s.12(1), "in respect of family proceedings in which the welfare of children…is or may be in question" should be interpreted to mean that the role of Cafcass is limited to the subject child or children of those proceedings.
I am reinforced in coming to this conclusion by taking account of the following matters:
i) the appointment of the children's guardian in public law proceedings under Part IV of the 1989 Act ('specified proceedings' as defined by s.41(6)) and the assistance it may be required to give to a court are subject to rules of court (s.41(10) 1989 Act);
ii) the appointment of a children's guardian in public law proceedings is limited to a child who is the subject of the proceedings and is a party to the same (r.16.3 FPR);
iii) similar provision is made in respect of the appointment in private law proceedings (r.16.4 FPR);
iv) the FPR make separate provision for a child who is not the subject of the proceedings but is a party to the proceedings, namely the appointment of a litigation friend (r.16.5 FPR); and
v) the powers and duties of a children's guardian whether in public law or private law cases set out in rr.16.20 & 16.27 and paragraphs 6 & 7 of PD16A must be read in the context of and in the light of the requirements of rr.16.3 and 16.4 FPR, namely the appointment is made in respect of the subject child.
I am in no doubt that a children's guardian, appointed to represent a child in public or private law proceedings, may be required to advise the court on the subject child's relationship with a non-subject child (eg a step-sibling) and the impact on the same depending upon the orders made by the court for the future placement of the subject child: see FPR r.16.20(2) & PD16A paras 6.6(f) & 7.7. Similarly, a children's guardian may be required to enquire into and advise the court about a wide range of matters and about a diverse group of people (eg relatives, friends and connected persons etc). This could include advising the court on the benefits/disadvantages of a non-subject child being called to give evidence in the proceedings. What is key, however, is that the objective and focus of these enquiries and of the advice is, and must be, establishing the welfare best interests of the subject child.
He also rejected that any precedent had been set by the small number of previous cases relied upon by the Local Authority as in these cases the power of the court to make such an order was not raised nor considered, none of the cases were referred to CAFCASS Legal and none of the courts in those cases heard argument on the point nor gave a judgment on the issue.
In this case, the decision was something of a moot point given that, in order to prevent further delay whilst the dispute was litigated, the Circuit Judge had discharged his previous direction against CAFCASS and had instead approved the instruction of an Independent Social Worker to undertake a Re W assessment of AB.
However, the principle established is clear: the role of CAFCASS does not extend to work with and assessment of non-subject non-party children.
Mr Justice Keehan’s conclusion that “the preparatory work directed by the judge ought properly to have been undertaken by a social worker from the local authority and/or a social worker from A City Council or, as was ultimately directed, by an independent social worker” highlights the options open to parties in future cases raising similar issues. However, it can be anticipated that a party facing serious allegations made by a child will seek to challenge the appropriateness of a Re W assessment being undertaken by the Local Authority relying on that child as a witness. It seems likely therefore that the instruction of Independent Social Workers to undertake such pieces of work will be the more popular option.
Inevitably, the instruction of an Independent Social Worker raises the question of funding. It is interesting to note that in this case, the appointment of an Independent Social Worker was jointly funded by the parties. It is unclear whether the Circuit Judge was required to determine any dispute on this point. However, as noted in paragraph 47 of the judgment, AB was the Local Authority’s witness and her evidence was relied upon to establish a finding sought in satisfaction of the threshold criteria. Therefore, arguments that local authorities should solely bear the costs of commissioning Re W assessments of non-subject non-party children whose evidence is relied upon by the local authority should be anticipated in future cases.