Parklane Plowden Family Team Under 10’s Newsletter · Parklane Plowden Family Under í ìs Newsletter Winter 2020 Follow us on Twitter - @plowden_10 held that the regime amounted

Parklane Plowden Family Under 10’s Newsletter Winter 2020

Follow us on Twitter - @plowden_10

Parklane Plowden Family Team Under 10’s Newsletter

In the Winter edition of our Family Under 10’s Newsletter, Simon Wilkinson provides a case update

with regards to the Matter of D, Giorgia Sessi studies the guidance published by the Courts and

Tribunals Judiciary, whilst Charlotte Wilce lays out a case study regarding the role of CAFCASS in

relation to non-subject children.

We hope you all had a lovely festive season and Happy New Year.

Simon Wilkinson

Case Update: In the matter of D (A Child) [2019] UKSC 42

Back in October the Supreme Court handed down one of the most eagerly anticipated judgments of

recent times. I talk not of the slightly more widely publicised judgment in R (on the application of

Miller) v The Prime Minister, Cherry and others v Advocate General for Scotland [2019] UKSC 41, but

of the judgment handed down two days later In the matter of D (A Child) [2019] UKSC 42, following a

hearing in which the Supreme Court sat with a majority of women for the first time (a landmark in

itself) all the way back in October 2018.



The judgment was eagerly awaited in the jurisdictions of family law and mental capacity law as it

considered fundamental questions involving the interplay between rights protected by articles 5 and

8 of the European Convention on Human Rights (“the convention”) and the relationship between a

parent and a child and the concept of parental responsibility.

As Lady Hale summarised in her lead majority judgment the issues which fell to be considered were

the ‘principal issue’ alongside a number of supplemental issues flowing from the first. In summary

they were (at para [3]):

1. Is it within the scope of parental responsibility to consent to living arrangements for a 16 or 17-

year-old child which would otherwise amount to a deprivation of liberty within the meaning of

article 5?

2. What difference, if any, does it make that the child lacks the mental capacity to make the

decision for himself?

3. What difference, if any, does it make that the holder of parental responsibility is a public

authority rather than an individual?

4. Do the restrictions on placing children in accommodation provided for the purpose of restricting

liberty, arising from section 25 of the Children Act 1989, apply to the sort of living arrangements

in question here?

The case and its principals as outlined above are of seminal importance not just in the jurisdiction of

adult mental capacity but also for children’s social services and those who are involved with the legal

structure surrounding them. As one solicitor working in the sphere of adult social care tweeted:

‘welcome to the COP, Children’s Social Care sector’.

The background

The case concerned D, born on 23 April 1999 and therefore aged 20 and now an adult. At the

material time he was a child. He was diagnosed with attention deficit hyperactivity disorder,

Asperger’s syndrome, Tourette’s syndrome a mild learning disability. His parents struggled to look

after him in the family home and eventually in October 2013 (when he was aged 14) he was

admitted to Hospital B for multi-disciplinary assessment and treatment. He lived in a unit in the

hospital grounds and there attended school. The external door was locked and D was checked on

bay staff every half hour. If he left the site he was accompanied on a one to one basis and his visits

home were fully supervised.

The matter came before Keehan J on the application of the Hospital Trust who sought a declaration

under the inherent jurisdiction of the High Court that the deprivation of liberty was lawful. Keehan J



held that the regime amounted to a confinement for the purposes of the first limb of the Storck v

Germany (2005) 43 EHRR 6 test, however it was a proper exercise of parental responsibility to keep

an autistic 15-year-old boy with erratic, challenging and potentially harmful behaviors under

constant supervision of control. It was noted that upon D reaching 16 years of age he would come

under the jurisdiction of the Court of Protection - In re D (A Child) (Deprivation of Liberty) [2015]

EWHC 922 (Fam); [2016] 1 FLR 142.

D was then discharged from hospital to a residential placement (Placement B) which was arranged

by Birmingham City Council (“the LA”). On D’s 16th birthday the LA issues proceedings in the Court

of Protection (“the COP”) seeking a declaration that D would not be deprived of his liberty at

Placement B because his parents could consent to it. D was transferred to Placement B and

accommodated there under section 20 of the Children Act 1989 (“CA 1989”).

It was common ground between all of the parties that save for the issue of consent (limb (b) of the

Storck test) the arrangements under which D lived at Placement B amounted to a deprivation of his

liberty: the placement was a large house set in grounds with 12 residential units, each with its own

fenced garden. D lived in House A with three others. The external doors were locked, if he wanted to

go into the garden he had to ask for the door to be unlocked. He was not allowed to leave the

premises save for a planned activity. He received onto to me support during waking hours and staff

were in constant attendance overnight. It was also common ground that the placement (and a

subsequent placement) were in D’s best interests and that D himself could not give valid consent.

Keehan J heard the COP case in November 2015 and gave judgment in January 2016. He held that

the parents could no longer consent to D’s deprivation of liberty - Birmingham City Council v D (by

his litigation friend, the Official Solicitor) [2016] EWCOP 8; [2016] PTSR 1129.

The LA appealed to the Court of Appeal. Before the appeal was heard D was transferred to

Placement C - where the arrangements were not materially different from those at Placement B.

Once again the parents consented pursuant to section 20, CA 1989. Once again Keehan J authorised

both the placement and the deprivation of liberty.

The Court of Appeal hearing the case in February 2017, giving judgment on 31 October 2017. By this

time D had turned 18 and his deprivation of liberty could be authorised pursuant to the deprivation

of liberty safeguards in Schedule A1 to the Mental Capacity Act 2005 (“MCA 2005”) and in the COP.

The Court of Appeal in a lead judgment given Sir James Munby P held that Keehan J was wrong to

hold that a parent could not consent to what would otherwise be a deprivation of liberty of a 16- or

17-year-old child without capacity to consent himself. The judgment relied heavily on the reasoning

of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112,

that the exercise of parental responsibility comes to an end not on the child attaining a certain age

but on them becoming ‘Gillick competent’.



It was that decision which was appealed by the Official Solicitor on D’s behalf. The Supreme Court

gave permission to appeal notwithstanding D’s age due to the fundamental issues which fell to be

considered. The LA opposed the appeal. The Equality and Human Rights Commission were given

permission to intervene and support the appeal. The Secretaries of State for Education and for

Justice likewise were given permission to intervene jointly and support the LA in opposing the

appeal.

The Majority View

Lady Hale

Within her judgment Lady Hale considers the concept of parental responsibility (both in the CA 1989,

the common law and other statutory provision) and its interrelationship with the Convention. She

spends some time considering the development of the concept of parental responsibility from the

Victorian period through to its enactment and definition within the CA 1989. In particular her

ladyship draws attention to the development in the latter part of the twentieth century of a less

paternalistic and more autonomy-focused view as to parental responsibility - Hewer v Bryant [1970]

1 QB 357 (in particular the judgments of Lord Denning MR and Sachs LJ) and Gillick (supra) at pp 172,

186 and 195. In respect of the latter Lady Hale (at [23]) summarises the position thus:

“It was no longer, if it ever had been, correct to fix [the capacity of a child to make their own

decision] at any particular age, rather than by reference to the capacity of the child in

question...Parental rights and authority existed for the sake of the child, to enable the

parent to discharge his responsibilities towards the child, and not for the sake of the

parent.”

It is noted that Gillick is not directly applicable to the facts of this case, focussing as it does on the

issue of whether a child can acquire capacity rather than whether parental capacity can endure

beyond the age of 16 in circumstances where a child lacks the capacity to make decisions for

his/herself. Her ladyship goes on to consider various statutory provisions (noted by Keehan J in his

COP judgment) in which the age of 16 is given prominence and pre-eminence but notes (as did

Munby P) that these do not supply the answer to the issue in this case - namely the extent of

parental responsibility for a child who lacks the capacity to make a decision for himself.

Lady Hale concludes her discussion in respect of parental responsibility by positing a general rule

that parental responsibility extends to make decisions on behalf of a child of any age who lacks the

capacity to make them for himself, save that there may be a limit to that general rule in that it may

be outside of the scope of parental responsibility to make arrangements which amount to depriving

the child of his liberty. This comment though is strictly obiter as Lady Hale reaches a conclusion

based on the effect of article 5 of the Convention.



Looking at the Convention Lady Hale considers the effect of the protections afforded by article 5 in

circumstances where the parents agree to a deprivation of liberty. She makes the obvious point that

the protections afforded by the Convention apply to ‘everyone’ and that ‘everyone’ includes children

- see para [29] and the reference to the rights of Thompson and Venables to a fair trial in T v United

Kingdom (1999) 30 EHRR 121. After considering in some detail the provisions of domestic and

international jurisprudence surrounding the interplay between article 5 and the exercise of parental

responsibility, Lady Hale reaches what she describes as ‘the crux of the matter’ (at [39]) - following

on from observations by Dame Elizabeth Butler-Sloss P and Judge LJ In re K (A Child) (Secure

Accommodation Order: Right to Liberty) [2001] Fam 377:

“Do the restrictions fall within normal parental control for a child of this age or do they not?

If they do, they will not fall within the scope of article 5; but if they go beyond the normal

parental control, article 5 will apply (subject to the question of whether parental consent

negates limb (b) of the Storck criteria)”

She concludes that clearly the degree of supervision and control to which D was the subject in both

Placements B and C would not be normal for a child of 16 or 17 years of age. In answer to the

question as to what difference D’s mental disability made, her ladyship unsurprisingly concluded

that it did not make any difference: ‘the living arrangements of the mentally disabled people

concerned had to be compared with those of people who did not have the disabilities which they

had’ [41] - see Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19;

[2004] AC 896.

As to whether parental consent can act as a substitute for the consent of the child, her ladyship is

clear that it cannot - (para [42]). In the final section of her judgment Lady Hale considers the

interplay between parental responsibility and human rights; noting that the former is essentially a

private law relationship whereas the latter is about the relationship between individuals and the

state. However, drawing on the judgments in both Storck and Nielson v Denmark (1988) 11 EHRR

175 Lady Hale noted that the state has a positive obligation to protect individuals from being

deprived of their liberty by private persons. Likewise it is not permissible for a parent to seek to

authorise the state to deprive a child of his/her liberty no more than it would be for a parent to

licence the state to inflict what would otherwise be torture or inhuman or degreasing treatment or

punishment upon a child (paras [47]-[48]).

In concluding Lady Hale notes that her conclusions would “logically” also apply to a younger child

whose liberty was restricted to an extent which was not normal for a child of his age However she

observes that the common law may draw a sharp distinction between a child aged 16 and one who

was younger and that the interplay with the Convention rights is unclear. In those circumstances

Lady Hale does not express a view upon that question (para [50]).



Lady Black

In her judgment Lady Black considers the interplay between section 25, CA 1989 (secure

accommodation) and the situation for D. She also explores in some detail the scope and limits, as

she sees them, of parental responsibility.

In respect of the second of these issues, Lady Black notes that she reaches a ‘firmer conclusion’ that

Lady Hale (para [54]). Lady Black revisits the judgment of Sachs LJ in Hewer v Bryant (supra) and

considers this in the context of a wider interrogation of the development of parental rights at

common law - in particular that there appeared to be a ‘fixed age of discretion’ referable to a child’s

chronological age (16 years). As with Lady Hale, she notes that the common law can evolve, and to

this end cites Gillick.

Looking at Gillick Lady Black disagrees with the analysis of Sir James Munby P in the Court of Appeal

that the test can extend to parental responsibility in respect of making decisions which would

deprive a child of his or her liberty. She notes two bases for this:

1. The test in Gillick was not about restricting the physical liberty of a child but concerned decision

making in the sphere of medical treatment. In particular she notes that deprivation of liberty is a

particularly unique concept - relying on (a) the added interplay with article 5 of the Convention;

(b) a history of habeas corpus authorities (referred to within her judgments); (c) the engraining

of the concept in domestic law - i.e. s.25, CA 1989; and (d) the special status given to deprivation

of liberty in the MCA 2005.

2. The question in Gillick was whether a parent could lose their decision making powers before a

child turned 16 years if the child was capable of making that decision him/herself and not

whether a parent could continue to make decisions after a child turns 16 if the child was not

capable.

After summarising the views of the majority of the House of Lords in Gillick and considering the

reasoning of the President in the Court of Appeal in Re D (supra) Lady Black reiterates that she

disagrees with his analysis. She notes (at [88]) that:

“it would not...be appropriate to interpret [Gillick] so as to draw into the...net a situation

which is diametrically opposed to that with which the House was concerned (not of

tempering of parental responsibility in relation to the under 16 age group, but its expansion

in relation to those aged 16 and 17 so as to give it a role which would not otherwise be

afforded by the common law).”

At the conclusion of this section of her judgment Lady Black considers whether her conclusion in

respect of parental responsibility extending to depriving a child of his or her liberty aged 16-17 years



of age is equally applicable to a child under 16. Lady Black is circumspect on this point, preferring to

leave this question to a case in which the issue arises and full argument is heard (paras [89]-]90]).

Lady Black then goes on to consider whether section 25, CA 1989 applies to living arrangements such

as D’s - so called secure accommodation orders. She begins by setting out the relevant statutory

provisions in detail and noting the common misconception that section 25 applies only to looked

after children - it does not (see paras [94]-[95]). This issue was not one which was the subject of oral

argument in the Supreme Court, nor did it play any part in the history of the case. As such Lady Black

expresses no final view on the subject. However she does not that:

a. Section 25 is not intended to be widely interpreted, so as to catch all children whose care needs

are being met in accommodation where they is a degree of restriction on their liberty, even

amounting to a deprivation of liberty.

b. There is force to the argument that it is on the accommodation itself upon which focus should

be turned, rather than the attributes of the care that a child receives.

c. This is supported by the framing of the section as having a “last resort” quality about it (see para

[114]) - it seems to suggests the need for accommodation which has features necessary to

safeguard a child who meets the criteria within the sub-sections.

Lady Arden

Delivers a short majority judgment at [116] to [122]. She agrees with Lady Hale’s judgment on the

effect of article 5 of the Convention. As with Lady Hale she does not express any view as to the

convention rights of a child under the age of 16 years.

Lady Arden notes that there may be cases in which there may be a denial rather than a deprivation

of liberty for the purposes of article 5 (which is not a qualified right) - i.e. there may be cases where

a person loses their liberty but the acid test in Cheshire West is not met. She draws upon the case of

R (Ferreira) v Inner South London Senior Coroner [2018] QB 487 and draws a distinction between D’s

case involving living arrangements and circumstances in which a child needs life-saving medical

treatment and is unable to give their consent to the consequent loss of liberty.

Comment

This is a significant case, however perhaps not as ground-breaking as many lawyers felt that it may

be – particularly in light of the changes to deprivation of liberty which will be in force from October

2020 under the Liberty Protection Safeguards.

The following points arise from this judgment:

• Local Authorities must now ensure that for all of those children whom they have

responsibility aged 16/17 years of age that their circumstances are considered.



• If the circumstances meet the ‘acid test’ and the child cannot consent to their own

confinement then the deprivation of liberty will need to be given lawful authority.

• How that will be done is a matter of fact on each case – the lawful methods which appear to

be appropriate at the current time are:

o Detention under the Mental Health Act 1983;

o Detention in secure accommodation pursuant to s.25, Children Act 1989; or

o An order from the Court of Protection; or

o A declaration in the Family Division of the High Court.

• It is most likely that for children of this age and who lack the requisite mental capacity that

an application to the Court of Protection will be the most appropriate – and this has many

benefits (including earlier handover of responsibility, smooth transition to adulthood,

arguably a wider armoury of court oversight and jurisdiction).

• In respect of that cohort of children, then from October 2020 they will be covered by the

provisions of the LPS – however this judgment is a reminder of the necessity for LAs to start

acting now.

• LAs must be alive to situations of ‘private’ confinements may occur – i.e. at home or in

educational establishments. Imputability to the state arises where the state knows or ought

to have known of the confinement.

• This case is silent as to children who are aged under 16. Lady Black expressly stated that she

did not wish to comment upon whether parents could exercise their parental responsibility

for this group of children in order to give valid consent. Lady Hale went slightly further,

stating that the logical conclusion would be that her view as to the impact of Article 5 would

be that it would apply to such children although she too expressed no opinion on it. Lord

Carnworth (in his dissenting judgment) noted Lady Hale’s opinion ‘with concern’. As such the

current position is that held by Keehan J in the Family Division judgment on this case (In re D

(A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam)) that a parental agreement can

operate to prevent a confinement being a deprivation of liberty.

• Children who do have capacity to give their own consent will need to be treated with care.

The view of Munby P in Re A-F (Children) [2018] EWHC 138 (Fam) at [53] was that he would

expect evidence on this point to come from either a child and adolescent psychologist or a

child and adolescent psychiatrist (however this somewhat contradicts what Keehan J said in

Re C (A Child) [2016] EWHC 3473 (Fam)



Giorgia Sessi Financial Remedies Court: further guidance published by the Courts and Tribunals Judiciary The Courts and Tribunals Judiciary has recently published two documents aimed at providing further guidance on the structure and operation of the Financial Remedies Court (FRC). The documents are entitled “Overall Structure of the Financial Remedies Courts” and “Financial Remedies Courts Good Practice Protocol” and can be downloaded at https://www.judiciary.uk/announcements/financial-remedies-courts The FRC was first established as a pilot court in Birmingham and the West Midlands in 2018. The pilot was then extended to numerous other courts and the full list of FRC zones as of November 2019 is as follows:

- London - West Midlands - East Midlands - South East Wales - Mid and West Wales - Cheshire and Merseyside - Humberside & South Yorkshire - Cleveland, Newcastle and Durham - North and West Yorkshire - Kent, Surry and Sussex - Greater Manchester



The President of the Family Division has appointed Mr Justice Mostyn as the National Lead Judge of the FRC. The President has further appointed a Lead Judge for each area in which the FRC operates. The expectation is that each Lead Judge will follow the guidance set by the President, whilst adapting it to the specific requirements of their area. The document makes it clear that local solutions which are contrary to national guidance should be avoided. This should ensure that the protocol is followed consistently across the board and users can expect the system to operate in the same way, regardless of the geographical area in which proceedings are issued. Lead Judges are in charge of selecting FRC judges in their area and identifying those FRC judges who can carry out financial remedies work of a complex nature. They are to report back to the National Lead Judge and attend meetings and consultation processes in relation to the operation of the FRC. Significantly, the Lead Judge is responsible for ensuring that there are enough FRC judges available to carry out financial remedies work on the list and that the allocation process is conducted efficiently and effectively. The task also includes ensuring that a system is in place for the efficient and timely approval of financial remedies consent orders. The tenure of each Lead Judge will last for four years and will formally commence on 1 January 2020. The Good Practice Protocol states that the principal aim of the FRC is “to improve the delivery of financial remedies for families involved in court proceedings relating to issues arising from the dissolution of relationships”. The Protocol adds that, unless unavoidable, no case involving financial remedies shall be dealt with by a Judge who is not an FRC Judge. Parties are encouraged to fill in an allocation questionnaire when issuing their financial remedies application (a template is annexed to the Protocol) which should indicate, amongst other things, whether a longer first appointment is required in light of the complex nature of the case. The Protocol stresses the importance of encouraging parties to engage in out-of-court settlement through means such as mediation, arbitration and private FDRs and contains a list of approved guidance documents available to court users. It goes on to say that, save in exceptional cases, questionnaires should not exceed 4 pages and position statements should not cover more than 5 pages of A4 for a First Appointment, 10 pages of A4 for an FDR and 15 pages of A4 for a final hearing. Parties should, wherever possible, agree a schedule of assets. The Protocol concludes by acknowledging the wellbeing of advocates appearing at the FRC by stating that financial remedies hearings should not take place before 10 am and the court day should generally end between 4 and 4.30 pm. The expectation is that emails sent after 6 pm will not be answered before 8.30 am the next working day and sending emails between those times should be discouraged (unless there are reasonable prospects that such correspondence would lead to a settlement being reached).



Charlotte Wilce

The role of CAFCASS in relation to non-subject children: A Case Study of A County Council v Children and Family Court Advisory and Support Service (Cafcass) [2019] EWHC 2369 (Fam)

In a recent decision of the High Court, Mr Justice Keehan considered the extent to which, if at all, the Court has the power to appoint CAFCASS to undertake work with and advise non-subject, non-party children. The Facts The facts of the case are slightly unusual albeit not entirely unfamiliar. The Local Authority brought proceedings in respect of child X and one matter relied upon in its threshold were allegations of sexual abuse by child AB, a non-subject and non-party child, that AB had been the victim of sexual abuse perpetrated by the father of child X. The father disputed the allegations and made an application for AB to give evidence so that her allegations could be challenged. The question for the allocated Circuit Judge was who should undertake an assessment of and enquiries with AB to assist the Court in determining whether AB should give evidence in the proceedings relating to X. Various options were considered including assessment by a Social Worker from the applicant Local Authority, a Social Worker from the different local authority with whom AB and her family had involvement, an Independent Social Worker or CAFCASS. The Circuit Judge initially directed that CAFCASS, but not the Children’s Guardian appointed for X, undertake the piece of work required. Unsurprisingly, perhaps, CAFCASS objected on the basis that the direction fell outside the statutory functions of the service.



Recognising the issue to be of wider general importance to family proceedings, the Circuit Judge referred the case to Mr Justice Keehan as the Family Division Liaison Judge for the Midland Circuit. The Statutory Framework In paragraphs 13 – 21 of his judgment, Mr Justice Keehan considered the relevant statutory framework including section 12 of the Criminal Justice and Court Services Act 2000, section 7 and 41 of the Children Act 1989, and rules 16.3 and 16.4 of the Family Procedure Rules 2010. Particular focus was paid to the provisions of section 12 of the Criminal Justice and Court Services Act 2000 which states: "Principal functions of the Service. (1) In respect of family proceedings in which the welfare of children [other than children ordinarily resident in Wales] is or may be in question, it is a function of the Service to: (a) safeguard and promote the welfare of the children, (b) give advice to any court about any application made to it in such proceedings, (c) make provision for the children to be represented in such proceedings, (d) provide information, advice and other support for the children and their families. (2) The Service must also make provision for the performance of any functions conferred on officers of the Service by virtue of this Act or any other enactment (whether or not they are exercisable for the purposes of the functions conferred on the Service by subsection (1)). (3) Regulations may provide for grants to be paid by the Service to any person for the purpose of furthering the performance of any of the Service's functions. (4) The regulations may provide for the grants to be paid on conditions, including conditions— (a) regulating the purposes for which the grant or any part of it may be used, (b) requiring repayment to the Service in specified circumstances.



(5) In this section, "family proceedings" has the same meaning as in the M1Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the M2Children Act 1989, but— (a) references to family proceedings include (where the context allows) family proceedings which are proposed or have been concluded" The Arguments The Local Authority argued that on a statutory construction, s.12 of the Criminal Justice and Court Services Act 2000 cannot be read to limit or restrict the functions of CAFCASS to the subject child. Four aspects of the statutory and FPR provisions were relied upon, namely: i) s.12(1)(b) provides that it is a function of Cafcass to "give advice to any court about any application made to it in [family] proceedings"; ii) r.16.20(2) provides that "the children's guardian must also provide the court with such other assistance as it may require"; iii) paragraph 6.1(b) of PD16A provides "obtain such professional assistance as is available which the children's guardian thinks appropriate or which the court directs must be obtained"; and iv) paragraph 6.6(f) of PD16A provides the children's guardian must advise the court on "any other matter on which the court seeks advice". The Local Authority also relied on three authorities, none of which, however, dealt directly with the question in point. CAFCASS argued that the subsections of s.12 of the 2000 Act should not be read disjunctively with particular reference to section s.12(1)(c), which "make provision for the children to be represented in such proceedings" which was relied upon to argue that the role of CAFCASS is limited to the subject child of the proceedings. The point was also made “forcefully” that “it is the function of local authorities' children services departments, and not CAFCASS, to be responsible for the safeguarding of children generally. The duty of Cafcass to safeguard children is owed to those who are the subject of family proceedings.” Decision Mr Justice Keehan rejected the Local Authority’s construction of section 12, noting that such an interpretation would effectively place no limit on the work or the role a court could direct CAFCASS to undertake.



He noted that there was no reported authority on the interpretation of section 12 of the 2000 Act in respect of the scope of the function of CAFCASS. In paragraphs 41 – 44 of his judgment, Mr Justice Keehan concluded: “In respect of whether the subsections of s.12 should or should not be read disjunctively, I note that: i) the words 'or' do not appear after subsections (a), (b) or (c); and ii) neither does the word 'and' appear after subsection (c). It is in my judgment, however, significant that s.12(1) reads "it is a function of the Service to" followed by subsections (a) to (d). If the subsections had been intended by Parliament to be read disjunctively, I would have expected the word 'functions' to appear in s.12(1). The use of the word 'function' in the singular leads me to conclude that subsections of s.12(1) are not to be read disjunctively but instead are to be read conjunctively. Since one part of that function is to 'make provisions for the children to be represented in the proceedings', I am persuaded that the function and role of Cafcass pursuant to s.12 of the 2000 Act is limited to the subject child or children of the proceedings. Furthermore, I agree with and accept the submission made on behalf of Cafcass that the opening words of s.12(1), "in respect of family proceedings in which the welfare of children…is or may be in question" should be interpreted to mean that the role of Cafcass is limited to the subject child or children of those proceedings. I am reinforced in coming to this conclusion by taking account of the following matters: i) the appointment of the children's guardian in public law proceedings under Part IV of the 1989 Act ('specified proceedings' as defined by s.41(6)) and the assistance it may be required to give to a court are subject to rules of court (s.41(10) 1989 Act); ii) the appointment of a children's guardian in public law proceedings is limited to a child who is the subject of the proceedings and is a party to the same (r.16.3 FPR); iii) similar provision is made in respect of the appointment in private law proceedings (r.16.4 FPR); iv) the FPR make separate provision for a child who is not the subject of the proceedings but is a party to the proceedings, namely the appointment of a litigation friend (r.16.5 FPR); and v) the powers and duties of a children's guardian whether in public law or private law cases set out in rr.16.20 & 16.27 and paragraphs 6 & 7 of PD16A must be read in the context of



and in the light of the requirements of rr.16.3 and 16.4 FPR, namely the appointment is made in respect of the subject child. I am in no doubt that a children's guardian, appointed to represent a child in public or private law proceedings, may be required to advise the court on the subject child's relationship with a non-subject child (eg a step-sibling) and the impact on the same depending upon the orders made by the court for the future placement of the subject child: see FPR r.16.20(2) & PD16A paras 6.6(f) & 7.7. Similarly, a children's guardian may be required to enquire into and advise the court about a wide range of matters and about a diverse group of people (eg relatives, friends and connected persons etc). This could include advising the court on the benefits/disadvantages of a non-subject child being called to give evidence in the proceedings. What is key, however, is that the objective and focus of these enquiries and of the advice is, and must be, establishing the welfare best interests of the subject child. He also rejected that any precedent had been set by the small number of previous cases relied upon by the Local Authority as in these cases the power of the court to make such an order was not raised nor considered, none of the cases were referred to CAFCASS Legal and none of the courts in those cases heard argument on the point nor gave a judgment on the issue. Conclusion In this case, the decision was something of a moot point given that, in order to prevent further delay whilst the dispute was litigated, the Circuit Judge had discharged his previous direction against CAFCASS and had instead approved the instruction of an Independent Social Worker to undertake a Re W assessment of AB. However, the principle established is clear: the role of CAFCASS does not extend to work with and assessment of non-subject non-party children. Mr Justice Keehan’s conclusion that “the preparatory work directed by the judge ought properly to have been undertaken by a social worker from the local authority and/or a social worker from A City Council or, as was ultimately directed, by an independent social worker” highlights the options open to parties in future cases raising similar issues. However, it can be anticipated that a party facing serious allegations made by a child will seek to challenge the appropriateness of a Re W assessment being undertaken by the Local Authority relying on that child as a witness. It seems likely therefore that the instruction of Independent Social Workers to undertake such pieces of work will be the more popular option. Inevitably, the instruction of an Independent Social Worker raises the question of funding. It is interesting to note that in this case, the appointment of an Independent Social Worker was jointly funded by the parties. It is unclear whether the Circuit Judge was required to



determine any dispute on this point. However, as noted in paragraph 47 of the judgment, AB was the Local Authority’s witness and her evidence was relied upon to establish a finding sought in satisfaction of the threshold criteria. Therefore, arguments that local authorities should solely bear the costs of commissioning Re W assessments of non-subject non-party children whose evidence is relied upon by the local authority should be anticipated in future cases.

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Parklane Plowden Family Team Under 10’s Newsletter · Parklane Plowden Family Under í ìs Newsletter Winter 2020 Follow us on Twitter - @plowden_10 held that the regime amounted