No breach by Cafcass

Cafcass’s repeated delays of several months in appointing children’s guardians in child-care cases do not amount to a breach of its statutory duty or to a breach of those children’s human rights, the Court of Appeal has held.

The court dismissed an appeal brought on behalf of four children against the Child and Family Court Advisory Services (Cafcass), in R (on the applications of R, E, J and K) v Cafcass [2012] EWCA Civ 853.

The Children Act 1989 (ChA 1989) provides that a guardian must be appointed for every child involved in a child-care case. Lawyers for the children argued that failure to appoint a children’s guardian in a timely manner or, in one of the cases, at all, amounted to a breach of Cafcass’s legal duties under the ChA 1989 duty and/or of Arts 6(1) and 8 of the European Convention on Human Rights.

Cafcass contended that in each case a guardian was allocated “as soon as was reasonably practicable…having regard to Cafcass’s resources and commitments”. This contention was not challenged.

Lord Justice McFarlane upheld the divisional court’s ruling that, while Cafcass was under a statutory duty in general terms to provide a scheme for the representation of children in care proceedings in England, that duty did not extend to a specific obligation to ensure that a particular child in an individual case is represented.

McFarlane LJ said: “The inability of the appellants to define a moment in time at which the individual duty for which they argue will bite is right at the centre of this case.”