Crumbling Justice System Failing Children

In a short judgment today a Family Court judge drew attention to the appalling impact of a failing justice system on the welfare of children: Re K (Inability to Instruct Guardian) [2022] EWFC B4: HH Judge Wildblood QC

His Honour said that the case before him related to a difficulty that, currently, was being experienced in many private law proceedings in the Bristol area.

The court had joined children in the proceedings but it had not been possible to secure a report from a guardian.

The two children concerned were both at primary school and lived with their mother. The father’s contact was currently limited to indirect contact (ie by way of letters or cards) and there was supposed to be a video call between the father and children each week for 15 minutes.

The mother alleged that the father was coercively controlling of her and that he physically chastised the children. She said the children were fearful of their father and did not want to see him.

The father alleged that the mother was coercively controlling of him and had manipulated the children against him.

Neither party suggested the need for a separate fact-finding hearing.

The marriage ended in January 2021 when the mother left home taking the children. On 26 January 2021 the mother issued the only formal application in the proceedings, and in February interim orders were made that the father must not remove the children from the mother or from anyone to whom she had entrusted their care.

Thereafter, the focus of the proceedings had been the father’s contact.

On 30 April 2021 a Recorder directed that the father should have indirect contact only. He also ordered that the children should be joined in the proceedings and should be represented by a guardian appointed by Cafcass.

Cafcass indicated it did not have the resources to accept the appointment.

On 10 August 2021 the case came before HH Judge Wildlood QC who appointed the National Youth Advocacy Service (NYAS) as guardian for the children in substitution of Cafcass.

On 24 November 2021 the final hearing had to be adjourned because NYAS had written to say it had not been able to appoint a caseworker to the proceedings and did not know when it would be able to do so.

The judge thereupon directed that NYAS should instruct an independent social worker to report to the court and listed the case for 25 January 2022.

The case returned to the judge’s list on 25 January 2022 but NYAS still could not appoint a caseworker and did not know when it might be able to do so because of the large number of cases that it had outstanding.

It was not the fault of NYAS or Cafcass because the workload of both was such that it could not accept the appointment.

Therefore, the position had been achieved whereby the court having directed that a guardian should be appointed in private law proceedings, Cafcass could not act as guardian because of its workload; NYAS could not act as guardian because of its workload; the Legal Aid Agency would not fund an independent social worker.

It was now seven months since the order joining the children was made. It was a year since the parties separated and the proceedings started.  No effective progress had been made.

The judge therefore discharged the children and NYAS from the proceedings.

There would be no more guardian appointments in the proceedings.

The judge ordered that the issue of interim contact should be listed before him for a 30 minute hearing and, because his own lists were full until the summer, he would hear the case over a lunch-break.

There was also a direction that Cafcass should report on the issue of contact in a report ordered under section 7 of the Children Act 1989. The case was listed for a Dispute Resolution Appointment in May 2022.

That meant it would have taken 16 months of proceedings before the court received advice from a professional on matters relating to the welfare of the two children.

You can listen to this case summary on the Baines Law Podcast Crumbling Justice System Failing Children which can be accessed on the Podcast Page of this Website at Podcast – Barry Baines