Guardian Ad Litem, CAFCASS and NYAS

S-K (A Child) [2013] EWCA Civ 1247

Case where parents separated in 2009. The mother left the family home in Nottingham and moved to Essex with the children. The father made an application for residence in 2010. However, the court in 2010 made a residence order to the mother, the father obtaining weekend staying contact on alternate weekends.

In 2012 the father reapplied for residence because the elder two children expressed the wish to live back in Nottingham. The CAFCASS officer recommended the children remain with the mother and accused the father of pressurising the children, which he denied.

The judge then ruled that residence is to remain to the mother and contact to the father be reduced.

In appeal the judges maintained the judge’s decision on residence but overturned the decision to reduce the staying contact to the father on the basis that neither the mother, the father nor CAFCASS had recommended the reduction. Furthermore, the children were never questioned about their feelings to such a reduction.


A County Council v K & Ors (By the Child’s Guardian HT) [2011] EWHC 1672 (Fam)

Case where the Social Services tried to undermine the independence of the guardian ad litem and the court’s authority in deciding the issues. This was done in secret.

“It was not for CAFCASS to replace the guardian: it was not for CAFCASS to substitute its views for those of the guardian. The guardian may have been right – she may have been wrong. It does not seem to me – although I have not, quite deliberately, made findings of fact – that CAFCASS followed a transparent procedure. Added to which, of course, it was complicit in the failure to notify the parents of what was going on.”


C (Children) [2010] EWCA Civ 239

A case where the father felt that the childrens real wishes and feelings were being misrepresented by the guardian ad litem. The father, unknown to the Guardian, took his three children to meet his local MP. The children made their views known to the MP. The MP conveyed the disparaging remarks the children had against their mother to the director of children’s services in order that they could be presented in court. This was an appeal against the court ordering the father to divulge the communications between him and his MP. His appeal failed.


Re L & B (Children) [2010] EWCA Civ 1118

Father appeals a decision on a finding of fact of domestic violence where he insisted the judge and the Guardian Ad Litem had colluded. In appeal the court found that there was a professional relationship between the judge and the Guardian. Such a relationship should have led the judge to stand down in favour of a different judge. It was also deemed that the Guardian had not been seen to be neutral and took exactly the same position as the mother on the allegations.


W (A Child) [2010] EWCA Civ 1449

Father appealed orders for sparse direct contact and indirect contact. The basis of the appeal was that the NYAS officer communicated evidence in private to the judge which was deemed to be a violation of his rights to a fair trial. Evidence brought to a judges attention should be made in front of all the parties in order that the opportunity to challenge such evidence is available.

The unfairness of the procedure, it was held, was then magnified when the judge refused the father’s application to have the opportunity to cross-examine the guardian on the recent report, although that would have required an adjournment, which the judge declined.


G (A Child) [2006] EWCA Civ 3481

Successful appeal decision to refuse a CAFCASS officer a meeting with the children to ascertain the children’s wishes and feelings towards the possibility of direct contact with the father.

Were the child to agree to direct contact which the mother would most probably not allow, the court would be on a collision course with the mother which was a situation the judge wanted to avoid.

The appeal court rejected this argument. As Miss Brereton has pointed out, this court in the case of Re S [2004] 1 FLR 1279, has comparatively recently reiterated the obligation on the court to pursue all possible avenues to the resumption of direct contact. In particular, she refers to paragraph 46 of my judgment in which I said:

 ”Whatever the difficulties, however scant the prospects of success, the courts must not relent in pursuit of the restoration of what had been a natural relationship between father and daughter, absent compelling evidence that the welfare of the child requires respite.”


Mabon v Mabon & Ors [2005] EWCA Civ 634

An appeal in a case where the court kept refusing the eldest three children the right to be directly represented in court as opposed to a court appointed Guardian Ad Litem. The Guardian Ad Litem made recommendations opposing the children’s wishes. The appeal was successful.

The lower court judge over emphasised the emotional harm the children would suffer in participating in a contested hearing. The appeal court ruled that it was wrong to not consider the emotional harm from preventing the children putting their views directly to the court.

Independent representation of articulate teenagers under FPR 1991, rule 9.2A allowed on appeal.

That analysis overlooks, in my judgment, the need for the boys on the facts of this particular case to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented and their perspective fully advanced to the judge.