Regester & Ors, R (on the application of) v Children and Family Court Advisory and Support Service

Section 12(2) of the Criminal Justice and Court Services Act 2000 requires CAFCASS to make practical provision for the performance of children's guardian functions. It does not impose an absolute duty to make an officer available immediately upon a court's request.

The phrase as soon as practicable in FPR 1991 rule 4.10(1) includes practical difficulties in identifying and making an officer available. The no-delay principle in the Children Act 1989 requires proper regard to delay, but does not itself prescribe an immediate timetable. CAFCASS's obligations remain subject to ordinary public law principles, including legitimate prioritisation and resource considerations.

Two conjoined judicial review applications arose from care proceedings in which interim care orders or emergency protection orders had resulted in children being removed from their families before a CAFCASS officer had been appointed as children's guardian.

The claimants argued that, under the Criminal Justice and Court Services Act 2000, the Children Act 1989 and the Family Proceedings Rules 1991, CAFCASS had an immediate or forthwith duty to make an officer available whenever requested by the court. CAFCASS disputed that construction. The claimants also sought damages under the Human Rights Act 1998, but agreed that those issues need not be determined.

1. The applications were dismissed. CAFCASS did not owe the alleged immediate or forthwith duty to make an officer available for appointment as children's guardian in specified proceedings. The alternative argument, that CAFCASS had to make arrangements enabling immediate appointment in all or nearly all cases, also failed.
2. Section 12(2) of the Criminal Justice and Court Services Act 2000 imposes a mandatory duty to make provision for the performance of functions conferred on CAFCASS officers. Its language does not prescribe immediate availability following a court's request. Schedule 2 paragraph 9 indicates that directions concerning standards or targets may be given by the Lord Chancellor.
3. Under section 41 of the Children Act 1989 and FPR 1991 rule 4.10, the court must appoint a guardian as soon as practicable unless appointment is unnecessary to safeguard the child's interests. That phrase is not confined to matters internal to the court. It includes practical difficulties concerning the identification and availability of a CAFCASS officer.
4. The guardian's functions arise on appointment. The rules nevertheless accommodate a temporary gap between the court's request and the officer's availability. The provisions concerning appointment of a solicitor also apply where practical difficulties in appointing a guardian would otherwise cause delay.
5. The no-delay principle in section 1(2) of the Children Act 1989 is important, as are the statutory purpose, the guardian's role and the duties in the rules. However, a general duty to have regard to avoiding delay does not require every step to be taken immediately. Delay may be necessary to gather evidence, obtain expert assistance, secure court dates or manage competing commitments.
6. The court alone decides whether an order should be made removing a child from home. For an interim care order or emergency protection order, the court can require further information, give directions and make an order for a limited period. The local authority decides where a child subject to an interim care order should live, while the guardian investigates independently and advises the court.
7. CAFCASS should, subject to legitimate prioritisation and resources, make officers available as soon as possible. Where a guardian has not been appointed at a substantive hearing, the court should consider the urgency of the guardian's particular assistance and may seek further information, adjourn, or make an order for a very limited period.

First-instance judicial review applications in the Administrative Court. Permission to appeal was refused by Mr Justice Charles; the court considered that the prospects of success did not warrant permission and that the public importance of the case did not itself provide a compelling reason.