Kang, R (on the application of) v Children and Family Court Advisory and Support Service (CAFCASS)

A parent’s dissatisfaction with a guardian ad litem’s report or conduct is ordinarily addressed in the underlying family proceedings, including by cross-examination and submissions. A refusal by Cafcass to advance a complaint to a further investigative stage does not determine the parent’s civil rights or obligations and therefore does not engage article 6 of the European Convention on Human Rights. Nor does it engage article 8 merely because the guardian’s functions may attract duties concerning private and family life. A judicial review challenge based on Convention rights may also be refused where the argument is raised for the first time on appeal and would substantially change the case.

The claimant, a parent involved in long-running family proceedings, challenged Cafcass’s refusal to establish a stage three investigation into complaints about the conduct of a guardian ad litem appointed to represent his children. Cafcass had considered the complaints at stage two and refused further investigation; that refusal was upheld on review.

Silber J refused permission to apply for judicial review, holding the irrationality challenge unarguable. On the renewed application for permission to appeal, the claimant abandoned that basis and advanced new arguments under articles 6 and 8 of the European Convention on Human Rights, including a challenge to the compliance of the complaints scheme itself. The central issues were whether the Cafcass decisions determined civil rights or obligations, engaged private and family life, or could properly be challenged on the new basis.

1. Application refused. The court refused permission to appeal from Silber J’s refusal of permission to apply for judicial review.
2. The claimant’s original irrationality challenge had no arguable prospect of success. The complaints about the guardian’s report and conduct could be raised in the family proceedings through cross-examination and final submissions. There was also a facility to complain to the Ombudsman about Cafcass’s handling of the complaint.
3. The proposed Convention arguments were raised for the first time on appeal, more than 14 months after issue of the judicial review claim, and substantially recast the challenge. The court was reluctant to permit an appeal to proceed on a basis foreign to that considered below.
4. Article 6 was not arguably engaged. Cafcass’s refusal to establish a stage three investigation did not determine the claimant’s civil rights or obligations. The guardian did not make the welfare decision; her recommendation might influence the family judge, but it was not itself a decision determining the claimant’s rights.
5. Article 8 was likewise not engaged by the impugned Cafcass decisions. Even assuming that the guardian, as a public-authority officer, owed duties respecting private and family life, those duties did not create a corresponding right or duty concerning Cafcass’s decision whether to establish a further investigation.
6. The challenge to the complaints scheme as itself incompatible with articles 6 or 8 was not arguable. The court’s conclusion that neither article was engaged in the particular case also explained why the wider challenge could not succeed.

• Court of Appeal (Civil Division): On 22 February 2010, refused the renewed application for permission to appeal against Silber J’s refusal of permission to apply for judicial review.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Silber J refused permission to apply for judicial review on 22 January 2009, holding the irrationality challenge unarguable.