Much publicity has been given to A county council (applicant) v (1) K (2) C (3) T (by the child's guardian HT) (respondents) & (1) CAFCASS (2) Anonymous referrer (3) T (4) Nagalro (interveners) (2011), a case which underlines the independent status of the children's guardian. Sir Nicholas Wall, the President of the Family Division who gave judgment, did not support CAFCASS's assertion that a manager's view would prevail in any disagreement between CAFCASS and a child's guardian saying "I yield to no-one in my view that the guardian's independence needs to be cherished."
Sir Nicholas called it "shocking" that in this case the parents had been kept in ignorance of the discussions that were taking place between CAFCASS, the local authority and the appointed guardian and was particularly critical of the lack of transparency and fairness in the case, considering that CAFCASS had broken its own rules:
"It was not for CAFCASS to replace the guardian; it was not for CAFCASS to substitute its views for those of the guardian. The guardian may have been right - she may have been wrong. It does not seem to me - although I have not, quite deliberately, made findings of fact - that CAFCASS followed a transparent procedure. Added to which, of course, it was complicit in the failure to notify the parents of what was going on."
Nagalro, the professional association for children's guardians, successfully applied to intervene in the case. It argued that CAFCASS guidance to its staff was unlawful as it allowed managers to change a guardian's recommendations where there was disagreement between them. Nagalro said its members had been put in a position of professional conflict as they risked being in breach either of their organisational duty to CAFCASS as their employer or their statutory duty to the court as set out in s.41 Children Act 1989.
We will have to wait and see if, as expected, CAFCASS reviews its organisational policies to take account of this judgment.
To read more about the case click here