A County Council v K & Ors (By the Child's Guardian Ht)

Where CAFCASS management and a court-appointed guardian disagree irreconcilably in care proceedings, the manager’s view does not automatically prevail. CAFCASS must place the disagreement transparently before the court, ordinarily by applying to intervene and explaining why its analysis should be preferred. The court decides the issue and whether the guardian should be replaced. The guardian’s statutory independence must be balanced with CAFCASS’s responsibility for quality assurance. Discussions between CAFCASS and a local authority about a live case should be rare, strictly necessary, minuted and disclosed to the other parties. The court also held that an employee’s identity and alleged employment misconduct were matters for the local authority’s internal processes, not issues to be adjudicated within the care proceedings.

Care proceedings concerning an infant were continuing before the county court after a family proceedings court made an interim care order permitting the child to remain at home. Following an anonymous referral, CAFCASS managers reviewed the guardian’s recommendation, communicated concerns to the court and local authority, and caused a different guardian to be appointed without a formal application or notice to the parents. The local authority later sought guidance concerning communications between CAFCASS and local-authority managers and the relationship between managerial quality assurance and the independence of a guardian appointed under the Children Act 1989.

The President declined to determine disputed facts or the employee’s identity. The central justiciable issue was what should occur when CAFCASS as an organisation and the individual court-appointed guardian reach an irreconcilable disagreement.

1. Disposition and justiciability. The court declined to identify the anonymous referrer or adjudicate on her alleged breach of confidentiality or employment obligations. Those matters were for the local authority’s internal processes. The court dealt only with statutory interpretation and the role of the court in care proceedings.
2. Appointment and decision-making. Under section 41 of the Children Act 1989, the court appoints the individual guardian. The court alone may revoke or change that appointment. CAFCASS, its officers and the local authority may advise, but every binding decision concerning the child is made by the court.
3. Irreconcilable disagreement. CAFCASS must monitor and quality-assure the work of its guardians, but a manager’s view does not invariably or inevitably prevail over the independent guardian’s view. If disagreement cannot be resolved, CAFCASS should apply to intervene. The guardian’s and manager’s views should be placed transparently before the court, with each explaining why the other should not be preferred. The court may then replace the guardian, or retain the appointment, but the decision is judicial.
4. Transparency. The letter sent in this case should not have been written in that form. CAFCASS should have made a formal application and notified the parents. Discussions between CAFCASS and a local authority about a live case should be rare, strictly necessary for the proper progress of the case, minuted and disclosed to all other parties and, if required, the court.
5. Reporting. The guardian’s reasoning, whether oral or written, remains open to challenge, including challenge to the method of investigation and reasoning. The court remains dependent on the quality of the advice it receives.

The matter originated in care proceedings issued by the local authority and an interim care order made by the Hastings Family Proceedings Court. The proceedings were subsequently transferred to the county court, where the public-policy issues concerning CAFCASS were directed to be heard separately before the President of the Family Division. This judgment determined those issues.