F-D v The Children And Family Court Advisory Service

Cafcass’s statutory functions are child-centred. Where the child’s interests conflict with those of a parent, it is not fair, just and reasonable to impose a common-law duty of care on Cafcass towards that parent. Any negligence assessment must apply the Bolam standard and take account of the resources available to Cafcass. Maladministration in handling a complaint does not establish liability where it has no causative effect on the underlying family proceedings or loss. Claims in misfeasance require bad faith, malice or an absence of honest belief in lawful conduct. A claim under article 8 likewise fails where Cafcass acted properly and the court retained control of the proceedings.

The claimant sought damages from Cafcass for alleged negligence, misfeasance in public office and breach of article 8. The claims arose from private-law proceedings concerning contact with his son after an acrimonious incident witnessed by the child. He alleged that a Cafcass Family Support Worker gave improper advice at a first hearing, that Cafcass failed to attend a later directions hearing, delayed a welfare report and mishandled his complaint. He subsequently withdrew his applications for residence and contact. The central issues were whether Cafcass owed him a public or common-law duty, whether its conduct was negligent or in bad faith, whether any breach caused actionable loss, and whether its conduct violated his article 8 rights.

1. Claims dismissed. The claimant’s claims for damages were not well founded.
2. Cafcass’s duties under sections 11 and 12 of the Criminal Justice and Court Services Act 2000 were principally directed to safeguarding and promoting the child’s welfare and advising the court. Section 1(1) of the Children Act 1989 made the child’s welfare paramount. The interests of the child and each parent were in real conflict.
3. Applying Caparo Industries plc v Dickman [1990] 2 AC 605 and D v East Berkshire Community Health Trust NHS Trust and others [2005] 2 AC 373, it was not fair, just and reasonable to impose a duty of care on Cafcass towards the claimant. Such a duty would hamper Cafcass in performing its primary duty to the child and would conflict with its equal duties to both parents.
4. The Family Support Worker had acted carefully and impartially. The February hearing involved cross-allegations of violence, a child who had witnessed the incident and a mother who would not consent to contact. The consent order and the need for a section 7 report were appropriate. Cafcass had not advised the judge to order no contact.
5. Even if a duty of care had existed, the applicable standard was the Bolam test. Having regard to Cafcass’s resources and the circumstances, the alleged failures concerning safeguarding checks, interim contact, attendance and reporting were not negligent. The complaint-handling process involved serious maladministration, but its delay could not have altered the family proceedings.
6. The misfeasance claim failed because there was no malice, bad faith, improper purpose or lack of honest belief in lawful conduct. The article 8 claim also failed: Cafcass had not acted negligently, the court controlled the proceedings, and the consent order did not establish a causative breach.

Not an appeal. The judgment determined the claimant’s first-instance damages claims.