A County Council v Children and Family Court Advisory and Support Service (Cafcass)

The statutory functions of Cafcass are confined to family proceedings concerning the welfare of the child or children who are the subject of those proceedings. The court may require a children’s guardian to investigate and advise on matters concerning non-subject children where the purpose remains the welfare and best interests of the subject child. It has no power, however, to require Cafcass or one of its officers to work with or advise a non-subject, non-party child in that child’s own interests. Such preparatory work must be undertaken by an appropriate social worker or independent social worker.

Care proceedings concerned a child whose father denied an allegation of sexual abuse made by an older young person, AB. The local authority relied on the allegation in seeking to establish the threshold under Children Act 1989, s 31(2), and an application was made for AB to give evidence.

The circuit judge directed Cafcass to undertake enquiries and a Re W assessment of AB. Cafcass objected, contending that the direction concerned a non-subject, non-party child and fell outside its statutory functions. The direction was discharged and an independent social worker appointed. The issue referred to the High Court was whether the court had power to require Cafcass to undertake that work.

1. Disposition. The court concluded that it had no power to require Cafcass to appoint an officer to undertake work with or play any role in relation to AB, who was neither the subject nor a party to the care proceedings.
2. Statutory construction. The opening words of s 12(1) of the Criminal Justice and Court Services Act 2000, together with the use of the singular “function” and the linked provisions concerning representation of children, confined Cafcass’s role to the subject child or children. The functions in s 12(1)(a)–(d) were to be read conjunctively, rather than as independent powers capable of unlimited expansion.
3. Rules and practice directions. The provisions governing the appointment and duties of children’s guardians in rr 16.3, 16.4, 16.20 and 16.27 of the Family Procedure Rules 2010, and in PD16A, had to be read in that statutory and procedural context. They did not authorise the appointment of a Cafcass officer to work with a non-subject, non-party child.
4. Permissible enquiries. A children’s guardian appointed for the subject child may investigate and advise on the subject child’s relationship with a non-subject child, including whether that child should give evidence, provided that the objective remains assessing the subject child’s welfare and best interests.
5. Practical consequence. The preparatory work concerning AB should have been undertaken by a local-authority social worker, a social worker from the authority already involved with AB, or an independent social worker. The court also noted, without relying on it, the potential workload consequences of a wider interpretation of Cafcass’s functions.