R & Ors (Minors), R (on the application of) v The Child and Family Court Advisory and Support Service

The statutory scheme requires CAFCASS to maintain a general and reviewable public-law framework providing for children’s representation and the performance of children’s guardians’ functions. It does not create an enforceable individual duty to appoint a guardian immediately, or within a fixed period, in every case. The applicable general duty is to make provision for appointment as soon as practicable. Convention rights under Articles 6 and 8 require assessment of the proceedings as a whole. Delay may contribute to a violation, but failure to appoint immediately does not itself establish one. Section 3 of the Human Rights Act 1998 could not be used to insert an immediate-appointment requirement, particularly because the statutory directions mechanism could impose appropriate time limits.

Four children brought judicial review claims against CAFCASS, alleging that delays in appointing children’s guardians in care proceedings breached statutory duties and Convention rights. The Divisional Court dismissed the claims, holding that the Criminal Justice and Court Services Act 2000 imposed general duties to provide a national scheme but no individual duty to appoint a guardian within a particular period: 2011(EWHC)1774 (Admin). The children appealed, arguing that the statutory scheme, Articles 6 and 8 of the ECHR, and section 3 of the Human Rights Act 1998 required immediate or timely appointment in each case. The central issue was whether CAFCASS owed each child an enforceable duty to secure prompt appointment.

1. Appeal dismissed. McFarlane LJ gave the principal judgment. Richards LJ and the Lord Chief Justice agreed.
2. The role of the children’s guardian is central to the care-proceedings scheme, and prompt appointment is highly desirable. However, the question was statutory duty, not desirability. Sections 12(1)(c) and 12(2) of the Criminal Justice and Court Services Act 2000, read with section 78 and Schedule 2, establish a general framework requiring CAFCASS to provide for children’s representation and for officers’ statutory functions to be performed. Those duties are susceptible to judicial review, but they do not confer an enforceable individual right to appointment in a particular case within a particular period.
3. A duty framed by expressions such as not long or too long, varying with the facts and identifiable only retrospectively, was legally untenable. The proper general obligation was to make provision for appointment as soon as practicable after request, not immediately or forthwith. R v Children and Family Court Advisory and Support Service was correctly decided.
4. The meaning of section 12 had to be determined from its wording, structure and statutory context when the 2000 Act was enacted. Later developments, including the Public Law Outline, subsequent rules, guidance, reviews, and increased caseloads, could not retrospectively alter Parliament’s intention. Re MH provided useful general guidance on purposive and Convention-compatible interpretation, but its decision on continuing guardianship during a supervision order depended on the express wording of section 12(5)(b), which had since been repealed.
5. Articles 6 and 8 required assessment of fairness and procedural protection by reference to the proceedings as a whole. A failure to appoint a guardian immediately did not itself establish a Convention breach. A breach might be found in an individual case after the trial process had been completed and the proceedings evaluated overall. No such finding was sought in these appeals.
6. Section 3 of the Human Rights Act 1998 did not justify inserting an immediate-appointment requirement into section 12. Even assuming that the Convention required immediate appointment, the Act’s directions mechanism in Schedule 2, paragraph 9, could impose appropriate time limits without changing the statutory meaning. The judicial review claims therefore failed.

1. Court of Appeal (Civil Division) dismissed the appeal against the Divisional Court’s dismissal of the judicial review claims.
2. High Court of Justice, Queen’s Bench Division, Administrative Court dismissed the claims on 12 July 2011, holding that CAFCASS owed general public-law duties but no individual duty to appoint a children’s guardian within a particular timescale: 2011(EWHC)1774 (Admin).