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Court of Appeal decides that CAFCASS is not under a statutory duty to appoint a guardian immediately

No breach of Articles 6 or 8 of the ECHR

In R (R and Others (Minors)) v CAFCASS [2012] EWCA Civ 853, the Court of Appeal has determined that CAFCASS does not have a statutory duty to each individual child to make an officer available immediately or within a short time.

In 2010 a High Court claim was brought against CAFCASS alleging that it had acted unlawfully in the way it allocated officers as children's guardians. Of the six grounds on which the claim was based, five were dismissed by the court at the permission stage. The remaining reason was dealt with by the Divisional Court in July 2011. The claim was dismissed and CAFCASS was found to have acted lawfully and reasonably in the cases of the four claimants.

The Court of Appeal has now dismissed their appeal. It has rejected the claim that CAFCASS has a statutory duty under section 12 of the Criminal Justice and Court services Act 2000 to each individual child to make an officer available immediately or within a short time. It has dismissed the claims (1) that there was a breach of article 6 and/or 8 ECHR in the four cases and (2) that section 3 of the Human Rights Act 1998 required that an allocation of a children's guardian by CAFCASS had to be immediate. Giving the lead judgment, McFarlane LJ said:

"Other than a blanket policy which, for example, refused to permit a party to proceedings any form of representation, it is difficult to conceive of circumstances where a breach of Art 6, or the procedural requirements of Art 8, could be established 'immediately' at the very start of the proceedings." (para 87)

He continued:

"It may well be that in one or more individual cases where there has been failure by CAFCASS to appoint a children's guardian in a timely manner, or at all, it will be possible to conclude that there has been a breach of the Art 6 and/or Art 8 rights of the individual child before the court. Such a conclusion would, in my view, only be achievable after the completion of the trial process and after it had been evaluated as a whole so as to determine whether or not a violation of these Convention rights had taken place." (para 88)

Charles Geekie QC of 1 Garden Court and Jenni Richards QC of 39 Essex Street, instructed by Battens Solicitors, acted for the appellants. CAFCASS was represented by Roger McCarthy QC of Coram Chambers.