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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> R & Ors (Minors), R (on the application of) v The Child and Family Court Advisory and Support Service [2011] EWHC 1774 (Admin) (12 July 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/1774.html Cite as: [2011] EWHC 1774 (Admin), [2012] WLR 811, [2011] ACD 96, [2012] 1 WLR 811, [2011] 3 FCR 79, [2011] 2 FLR 1206, [2011] Fam Law 1070 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE THIRLWALL
____________________
R (R, E, J and K, minors by their litigation friend the Official Solicitor) |
Claimants |
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- and - |
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THE CHILD AND FAMILY COURT ADVISORY AND SUPPORT SERVICE |
Defendant |
____________________
Mr Roger McCarthy QC (instructed by Director of Legal Services, CAFCASS) for the Defendant
Hearing date: 10 March 2011
____________________
Crown Copyright ©
Lord Justice Munby:
An overview
The background
The facts of the four cases
The facts of the four cases: R
The facts of the four cases: E
The facts of the four cases: J
The facts of the four cases: K
The facts of the four cases: the parties' submissions on the facts
The proceedings
"to apply for a declaration in the case of each of the four named claimants respectively that in respect of that respective claimant CAFCASS acted unlawfully and in breach of statutory duty by failing to allocate a named child's guardian for the respective child earlier than the respective date on which CACASS did so allocate a named guardian."
CAFCASS filed detailed grounds of defence on 30 November 2010. Both parties subsequently made applications for permission to file further evidence. Directions for the filing of further evidence were given by Lloyd-Jones J on 12 January 2011 and by Munby LJ on 10 February 2011. The evidence put before us included witness statements by the Official Solicitor, Alastair Pitblado, by the Chief Executive of CAFCASS, Anthony Douglas, and by CAFCASS' Operational Director for the South of England, Vince Clark.
The statutory context: the Children Act 1989
"the court shall have regard to the general principle that any delay in determining [any question with respect to the upbringing of a child] is likely to prejudice the welfare of the child."
Section 1(3) provides, by reference to what is colloquially called the 'welfare checklist', that the court:
"shall have regard in particular to –
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);(b) his physical, emotional and educational needs;(c) the likely effect on him of any change in his circumstances;(d) his age, sex, background and any characteristics of his which the court considers relevant;(e) any harm which he has suffered or is at risk of suffering;(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;(g) the range of powers available to the court under this Act in the proceedings in question"
Section 32(1) provides that the court:
"shall … –
(a) draw up a timetable with a view to disposing of the application without delay; and(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to."
"(1) For the purpose of any specified proceedings, the court shall appoint an officer of the Service … for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.
(2) The officer of the Service … shall –
(a) be appointed in accordance with rules of court; and(b) be under a duty to safeguard the interests of the child in the manner prescribed by such rules.
(3) Where –
(a) the child concerned is not represented by a solicitor; and(b) any of the conditions mentioned in subsection (4) is satisfied,
the court may appoint a solicitor to represent him.
(4) The conditions are that –
(a) no officer of the Service … has been appointed for the child;(b) the child has sufficient understanding to instruct a solicitor and wishes to do so;(c) it appears to the court that it would be in the child's best interests for him to be represented by a solicitor.
(5) Any solicitor appointed under or by virtue of this section shall be appointed, and shall represent the child, in accordance with rules of court.
/BLOCKQUOTE>(6) In this section "specified proceedings" means any proceedings –
(a) on an application for a care order or supervision order;
…
(10) Rules of court may make provision as to –
(a) the assistance which any officer of the Service … may be required by the court to give to it; …"
"(1) Where an officer of the Service … has been appointed under section 41 he shall have the right at all reasonable times to examine and take copies of –
(a) any records of, or held by, a local authority … which were compiled in connection with the making, or proposed making, by any person of any application under this Act with respect to the child concerned;(b) any … records of, or held by, a local authority which were compiled in connection with any functions which are social services functions within the meaning of the Local Authority Social Services Act 1970, so far as those records relate to that child;
…
(2) Where an officer of the Service … takes a copy of any record which he is entitled to examine under this section, that copy or any part of it shall be admissible as evidence of any matter referred to in any –
(a) report which he makes to the court in the proceedings in question; or(b) evidence which he gives in those proceedings.
(3) Subsection (2) has effect regardless of any enactment or rule of law which would otherwise prevent the record in question being admissible in evidence."
"As soon as practicable after the issue of proceedings or the transfer of the proceedings to the court, the court will –
(a) in specified proceedings, appoint a children's guardian under rule 16.3(1) unless –(i) such an appointment has already been made by the court which made the transfer and is subsisting; or(ii) the court considers that such an appointment is not necessary to safeguard the interests of the child;…(c) consider whether to ask an officer of the service … for advice relating to the welfare of the child; …"
FPR 2010 rule 16.3(1) provides that:
"Unless it is satisfied that it is not necessary to do so to safeguard the interests of the child, the court must appoint a children's guardian for a child who is –
(a) the subject of; and(b) a party to, proceedings –(i) which are specified proceedings; …"
As can be seen, this largely reproduces what is provided by section 41(1). FPR 2010 rule 12.6(c), it may be noted, is new.
"(1) The children's guardian is to act on behalf of the child upon the hearing of any application in proceedings to which this Chapter applies with the duty of safeguarding the interests of the child.
(2) The children's guardian must also provide the court with such other assistance as it may require.
(3) The children's guardian, when carrying out duties in relation to specified proceedings … must have regard to the principle set out in section 1(2) and the matters set out in section 1(3)(a) to (f) of the 1989 Act as if for the word "court" in that section there were substituted the words "children's guardian".
…
(5) The children's guardian's duties must be exercised in accordance with Practice Direction 16A."
"How the children's guardian exercises duties – investigations and appointment of solicitor
6.1 The children's guardian must make such investigations as are necessary to carry out the children's guardian's duties and must, in particular –
(a) contact or seek to interview such persons as the children's guardian thinks appropriate or as the court directs; and(b) obtain such professional assistance as is available which the children's guardian thinks appropriate or which the court directs be obtained.
6.2 The children's guardian must –
(a) appoint a solicitor for the child unless a solicitor has already been appointed;(b) give such advice to the child as is appropriate having regard to that child's understanding; and(c) where appropriate instruct the solicitor representing the child on all matters relevant to the interests of the child arising in the course of proceedings, including possibilities for appeal.
…
How the children's guardian exercises duties – attendance at court, advice to the court and reports
6.5 The children's guardian or the solicitor appointed under section 41(3) of the 1989 Act or in accordance with paragraph 6.2(a) must attend all directions hearings unless the court directs otherwise.
6.6 The children's guardian must advise the court on the following matters –
(a) whether the child is of sufficient understanding for any purpose including the child's refusal to submit to a medical or psychiatric examination or other assessment that the court has the power to require, direct or order;(b) the wishes of the child in respect of any matter relevant to the proceedings including that child's attendance at court;(c) the appropriate forum for the proceedings;(d) the appropriate timing of the proceedings or any part of them;(e) the options available to it in respect of the child and the suitability of each such option including what order should be made in determining the application; and(f) any other matter on which the court seeks advice or on which the children's guardian considers that the court should be informed.
6.7 The advice given under paragraph 6.6 may, subject to any direction of the court, be given orally or in writing. If the advice is given orally, a note of it must be taken by the court or the court officer.
6.8 The children's guardian must –
(a) unless the court directs otherwise, file a written report advising on the interests of the child in accordance with the timetable set by the court; …
How the children's guardian exercises duties – service of documents and inspection of records
6.9 The children's guardian must serve and accept service of documents on behalf of the child … and, where the child has not himself been served and has sufficient understanding, advise the child of the contents of any document so served.
6.10 Where the children's guardian inspects records of the kinds referred to in –
(a) section 42 of the 1989 Act (right to have access to local authority records); …the children's guardian must bring all records and documents which may, in the opinion of the children's guardian, assist in the proper determination of the proceedings to the attention of –(i) the court; and(ii) unless the court directs otherwise, the other parties to the proceedings.
How the children's guardian exercises duties – communication of a court's decision to the child
6.11 The children's guardian must ensure that, in relation to a decision made by the court in the proceedings –
(a) if the children's guardian considers it appropriate to the age and understanding of the child, the child is notified of that decision; and(b) if the child is notified of the decision, it is explained to the child in a manner appropriate to that child's age and understanding."
The statutory context: an overview
The statutory scheme: the Criminal Justice and Court Services Act 2000
"is to exercise the functions conferred on it by virtue of this Act and any other enactment."
"(1) In respect of family proceedings in which the welfare of children 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)).
…
(5) In this section, "family proceedings" has the same meaning as in the Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the Children Act 1989, but –
(a) references to family proceedings include (where the context allows) family proceedings which are proposed or have been concluded, and(b) for the purposes of paragraph (a), where a supervision order (within the meaning of the Children Act 1989) is made in family proceedings, the proceedings are not to be treated as concluded until the order has ceased to have effect."
It is correctly common ground that proceedings under Part III of the Children Act 1989 are, within the meaning of section 12(1), "family proceedings in which the welfare of children is or may be in question."
"Functions and other powers of the Service, and functions of any officer of the Service, must be performed in accordance with any directions given by the Lord Chancellor."
Paragraph 9(2) provides that:
"In particular, the directions may make provision for the purpose of ensuring that the services provided are of appropriate quality and meet appropriate standards."
No such directions have been given. Paragraph 10(1) provides that:
"Subject to any directions given by the Lord Chancellor, the Service may do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the exercise of its functions."
R v Children and Family Court Advisory and Support Service
"The applicants contend that, on the true construction of the relevant primary and secondary legislation, when requested by a court to do so, CAFCASS is under a legal obligation to make one of its officers available for appointment by the court as a guardian for the purposes of specified proceedings (as defined by s 41(6) of the Children Act 1989) and to do so immediately or forthwith. The dispute is as to the timing put on that obligation or duty by the applicants. CAFCASS denies that it owes a duty or obligation to make one of its officers available on that timescale (emphasis added)."
As Charles J made clear (para [13]), "no alternative time limit was argued for." That, as he went on to make clear, limited the issues he had to decide. The claims failed, both applications for judicial review being dismissed.
"[66] Section 12(2) of the 2000 Act uses the word 'must' and is therefore mandatory or 'super mandatory'. But this mandatory requirement relates to the making of provisions for the performance of functions and thus does not by its express language introduce the need for CAFCASS to make provision to enable it, immediately on request by the court, to make available an officer of the service for appointment as a guardian.
[67] Further, I agree with the submission made on behalf of CAFCASS that para 9(2) of Sch 2 to the 2000 Act provides a strong indication that time limits, or targets in or to be achieved by the provisions that are made by CAFCASS, are to be set by directions given by the Lord Chancellor. Pending any such directions, the decisions made by CAFCASS as to the provisions it makes are governed by established public law principles."
"[71] … having regard to the natural meaning of the language used in its context:
(1) The functions conferred on an officer of the service as the children's guardian by the Children Act 1989 and the rules, arise on appointment by the court and not before.
(2) The phrase 'as soon as practicable' in r 4.10(1) of the FPR 1991 is not confined to matters internal to the court, and includes problems relating to the identification and availability of an officer of the service for appointment as a guardian.
(3) The reference in r 4.10(1)(a) to an existing appointment by a court who transferred the proceedings is not confined to the possibility that that court did not request CAFCASS to make an officer of the service available for appointment. Rather it includes the possibility that such request was made but has not been complied with at the time of transfer of the proceedings.
(4) The provisions of s 41 of the Children Act 1989 relating to the appointment of a solicitor are not confined to a situation where the court has decided that the appointment of a guardian is not necessary to safeguard the interests of the child. Rather they include the situation where there are practical difficulties in appointing a guardian which will result in a delay in one being appointed.
[72] Accordingly, in my judgment, the language of the relevant provisions does not support the applicants' argument. Indeed, in my judgment, it points to conclusions that: (i) there can be a gap between the request made by the court and CAFCASS making an officer of the service available for appointment as the guardian; and (ii) the response of CAFCASS should be as soon as practicable after the request is made."
"[77] A duty to have regard to a general principle is far removed from a duty to take a particular step within a particular time. It is a truism to state that the proper application of the no delay principle does not mean that there will never be delays in, or in connection with, specified proceedings. This is because, for example, evidence has to be gathered, sometimes experts have to be instructed and court dates have to be obtained. Some of the delays are essential to enable the court to be properly informed before it makes a final or interim decision. Some of them arise from practical considerations outside the instant case and which apply to other cases of the same or a similar type. Thus, it cannot be said that of itself the no delay principle founds a conclusion: (i) that all steps in connection with specified proceedings have to be taken immediately; or (ii) that immediately on request from the court CAFCASS has to make available an officer of the service for appointment as a guardian or make provisions that enable it to do this.
[78] Additionally, proper regard by a guardian and others to the no delay principle does not exclude them from taking account of factors outside the instant case and thus, for example, other commitments and availability."
He added (para [90]):
"… there is no need to imply that CAFCASS have the immediate duty or obligation alleged by the applicants to make the statutory scheme of the Children Act 1989 and the rules thereunder relating to guardians work properly and fairly."
"I also agree with the following arguments advanced on behalf of CAFCASS:
(1) Section 12(2) of the 2000 Act refers to the making of provisions. Therefore, by its language, read alone and with the general functions set out in s 12(1), it imposes a general duty and shows that Parliament intended CAFCASS to make practical administrative arrangements. Thus, it would be surprising if Parliament intended CAFCASS, as a public body, to be subject to duties more stringent than those flowing from established public law principles. As to this argument, I add that: (i) an example of Parliament's awareness of resource issues is found in s 13 of the 2000 Act; and (ii) my view, as a general proposition it can be said that, when Parliament provides in general terms for a public body to make provision for particular purposes, it would intend it to have regard to resource and practical issues relating to management and administration.
(2) It seems unlikely that Parliament would have intended that CAFCASS would be under a duty to make a guardian immediately available for appointment in every case because of the resource and management implications this would have (see … R (Child Poverty Action Group and Others) v Secretary of State for Social Services and Another [1990] 2 QB 540).
(3) Where statute imposes an obligation on a public body to take a particular step, that does not normally import any requirement to take that step within a particular time and the general rule is that delay is controlled by the application of established public law principles (which include the Wednesbury test) and not by the reading in of time limits (see, for example, R (Rofath Ullah) v Secretary of State for the Home Department [1989] 1 QB 219, at 233, and R (Birmingham County Council) v Secretary of State for the Environment [1987] 27 RVR 53 at 55)."
"(1) The role of the children's guardian in specified proceedings is a very important part of the implementation of the Children Act 1989 overall and thus, that in applying normal public law principles it should, subject to legitimate prioritisation of cases and resource considerations, make officers of the service available for appointment as children's guardians as soon as possible after it has been asked to do so by the court.
(2) Having regard to the promotion of the welfare of children who are the subject of specified proceedings, the sooner an officer of the service is made available for appointment and starts work as the children's guardian, the better it is for that child, his family and, I would add, the court that has to make decisions about the upbringing of that child."
He went on (para [96]):
"In my judgment, CAFCASS is right to accept these points. They provide strong arguments in favour of the view that CAFCASS should receive funding that is sufficient to enable it to make officers of the service available for appointment as children's guardians in specified proceedings on, or within a very short time after, its receipt of a request to do so from a court."
The claimants' case
i) the timetable for and conduct of care proceedings are tightly governed by the section 1(2) 'no delay' principle and by the detailed timetable laid down in the PLO;
ii) there is no sense that the conduct of care proceedings is geared simply towards an all-important final contest between the parties at or near the end of that period; on the contrary, the rules are designed to avoid confrontation where possible, eliminate all unnecessary issues and avoid sprawling final hearings;
iii) care proceedings are, or should be, 'front-loaded', quasi-inquisitorial, and subject to tight judicial control at all times;
iv) a denial of representation in week 1 is no less significant than a denial of representation in the final week; indeed given the key issue of separation or no separation from parents that arises at the very outset in many cases it is arguably more important for a guardian to be in place at that stage;
v) a wide-ranging ability for CAFCASS to set its own timetable for appointment of the guardian will always be incompatible with such a system.
In summary, they say, reference to the various provisions governing care proceedings and the guardian's role in them leads to the conclusion that although the moment at which delay becomes impermissible will vary from case to case, the window for appointment is narrow. It will not be long, they say, before the absence of a guardian is incompatible with the statutory scheme and therefore unlawful. If there is more than a fairly short delay the guardian when eventually appointed will simply not be able to perform his functions properly; indeed, it will be too late to perform some of them at all.
The defendant's case
i) Is an individual timetable for allocation prescribed by the statutory framework? No.
ii) If the answer to (i) is no, should one be inferred from the statutory framework? No. Any such implication must be clear and unqualified. It is, he submits, quite impossible to ascertain from the statutory framework how comprehensive, quick, good, effective or fully staffed the provision required by section 12 is to be. Inferences or implications from statute cannot be left to speculation. Section 12 does not provide the answer. Parliament left it to the Lord Chancellor to 'flesh out' the statutory scheme, but he has chosen not to give any directions.
iii) If the answer to either (i) or (ii) is yes, what is that timetable? It is not possible to identify any usable timetable. The claimants do not assert that a timetable can be specified precisely. What form of words is to be used to describe the asserted duty? It is impossible to say.[3]
iv) If the answer to both (i) and (ii) is no, is an individual timetable created by any other non-statutory rule or principle? No. There is nothing in Article 6 or 8 (or, indeed, in Article 12) to require let alone define any timing approach that can be applied to individual cases.
v) If the answer to (iv) is yes, what is that timetable? Mr McCarthy repeats the answer he has given under (iii).[4]
vi) If there is an affirmative answer to either (iii) or (v), was that timetable breached in any of the present cases? Given the answers to (iii) and (v) the question does not arise; in any event the answer is no.
i) The claimants are unable to specify any point at which delay becomes unlawful. Phrases such as "too long" or "far too long" cannot be used as a test of legality, especially in relation to a general statutory function, for they lack any precision or certainty.
ii) The only reference to an allocation timetable is in the PLO, which does not, within the meaning of the 2000 Act, create or authorise a function; and any 'functions' which it does recognise are not "by virtue of any enactment."
iii) Nothing in either the 2000 Act or the 1989 Act, FPR 2010 and Practice Direction 16A, imposes any restrictions on how CAFCASS is to discharge its functions before an officer is allocated and all the obligations under the 1989 Act, FPR 2010 and Practice Direction 16A upon which the claimants rely apply only after appointment. The claimants' argument amounts to this: that the personal post-appointment duties of the individual children's guardian determine what CAFCASS as an organisation is to do before allocation. So, says Mr McCarthy, the argument involves the statutory non-sequitur that the absence of anything in the statutory framework specifying what is to happen before appointment does not prevent the post-appointment framework applying on a retrospective basis.
iv) The claimants' suggestion that any 'leeway' is a matter for determination by the family court is inconsistent with the case that the claim raised public law issues entitling the claimants to a declaration that CAFCASS has acted unlawfully, for on this basis the ultimate issue depends on the discretion of the family court. And how can the family court have jurisdiction over CAFCASS' resources, a quintessentially public law matter within the exclusive jurisdiction of the Administrative Court?
v) If the statutory framework does not achieve the outcome for which the claimants contend, is their case then that the framework is incompatible with the Convention? If so, they have sought no declaration of incompatibility.
The claimants' reply
"That is the point of CAFCASS. Effective performance of function by CAFCASS is the sole route to Article 6 compliance for the child. If there is to be Convention compliance for the child, CAFCASS must perform. That is what it was set up to do."
"[21] For the narrow construction to succeed, it seems to me that s 12(5)(a) and (b) must be read as applying to s 12(1) but not to s 12(2); or, to put the matter another way, that there is a distinction to be drawn between the functions of CAFCASS identified in s 12(1) and the 'provision for the performance of any functions conferred on officers of the Service' in s 12(2). I am unable to read the section in this way.
[22] 'Functions', in my judgment, have no meaning or effect unless they are performed or capable of being performed. The 'functions' referred to in s 12(2) of the Act plainly include functions conferred on children's guardians in family proceedings under the Children Act 1989. I therefore find it difficult to see how the definition of family proceedings contained in s 12(5) – which specifically refers to 'proceedings which are family proceedings for the purposes of the Children Act 1989' does not apply to the family proceedings in which officers of CAFCASS are exercising functions under s 12(2), the more so as s 12(2) itself refers to the performance of functions conferred on CAFCASS by the Children Act 1989 ('any other enactment')."
Wall J added this (paras [24]-[25]):
"[24] … there is no purpose in the Children Act 1989 making provision for the functions of CAFCASS, if it does not, at the same time, make provision for the performance of those functions by the officers of CAFCASS. Sections 12(1) and (2) accordingly do not simply set out the functions of CAFCASS in family proceedings; they impose an obligation on CAFCASS to make provision for the performance of those functions. The word 'also' in s 12(2) can thus only mean that CAFCASS must make provision for the performance of all its functions – whether imposed by the Act or any other enactment. I am, accordingly, unable to draw any meaningful distinction between the functions of CAFCASS and the functions of the officers of CAFCASS – and certainly not such a distinction as would require s 12(5) to apply to s 12(1) and not to s 12(2).
[25] If the only effect of s 12(5)(a) and (b) is to confer on CAFCASS a function under s 12(l) in family proceedings where a supervision [order] is made, and if that function lasts until the supervision order has run its course, what is that function? And how is it to be exercised? On this argument, it must be one of the functions set out in s 12(l)(a)–(d). How can the function have any meaning, if it is not to be performed?"
"So far as it is possible to do so, I have a duty to read and give effect to s 12(5) in a way which is compatible with Convention rights, and in particular Art 8 … I prefer an interpretation of s 12(5) which enables the children's guardian to remain en poste after the making of a supervision order. This interpretation seems to me both more compatible with the functions of CAFCASS, inter alia, to safeguard and promote the welfare of children; it also provides a mechanism for the prevention of breaches of the child's Convention rights which would not exist on the narrow construction … "
The defendant's response
Discussion
"applying normal public law principles it should, subject to legitimate prioritisation of cases and resource considerations, make officers of the service available for appointment as children's guardians as soon as possible after it has been asked to do so by the court."
We agree with that approach, which in our judgment correctly encapsulates the nature of the duty under section 12. But at the risk of repetition we stress two points: this is reasonable practicability assessed having legitimate regard to CAFCASS' resources and its obligations to children in other cases, not reasonable practicability assessed exclusively through the eyes of the court in a particular care case; and this obligation is a general one, not an individual or specific duty owed to the individual child in a particular case.
Conclusion and order
"strong arguments in favour of the view that CAFCASS should receive funding that is sufficient to enable it to make officers of the service available for appointment as children's guardians in specified proceedings on, or within a very short time after, its receipt of a request to do so from a court."
It would seem, unhappily, that this has been ignored. It is surely a serious question for government and Parliament whether the state of affairs revealed, and not for the first time, by these cases can continue to be tolerated.
Note 1 Section 12(5)(b) has in fact been repealed. We set it out because it was central to the decision in Re MH (A Child) and Re SB and MB (Children) [2001] 2 FLR 1334 to which we refer below. [Back]
Note 2 Whatever the ambit of stare decisis in the Divisional Court, it is clear that the Divisional Court cannot be ‘bound’ by a previous decision of a single judge of the High Court. At its highest the matter is one of judicial comity. [Back]
Note 3 Mr McCarthy illustrates the difficulty by asking rhetorically, is it to be “forthwith”, “as soon as practicable”, “as soon as (reasonably) possible”, “very quickly”, “without delay”, “a (very) short time after the start of the case”, “when the court directs” or “sufficiently quickly to fulfil all the tasks of the children’s guardian that might be needed in the case”? [Back]
Note 4 He asks rhetorically, is it to be “sufficiently quickly to allow the child effective access to the court”, or “sufficiently quickly to ensure that the child’s Article 6 (Article 8 or Article 12) rights are preserved”? [Back]
Note 5 Mr McCarthy referred in this connection to such matters as the fact that the court is a specialist tribunal charged to be proactive in protecting the child’s welfare, which is its paramount concern, that the court is itself a public body within the meaning of section 6 of the Human Rights Act 1998, and therefore obliged to perform its functions in a Convention compliant manner, that the court’s procedures are geared to ensuring that the child’s interests are protected, and that, importantly, there is automatic representation of the child by a solicitor who will always be expert in the field. [Back]