In the recently published judgment, Re K (inability to instruct guardian), His Honour Judge Wildblood QC brings to light a number of issues affecting the court system post-pandemic, and the impact of these delays on private law children proceedings, more generally.
In his judgment, HHJ Wildblood QC outlines the difficulties in this case where the children concerned had been joined to the proceedings and a report from a guardian had not been secured. This issue was deemed so important that the Judge, and the legal representatives of the mother, father and NYAS (The National Youth Advocacy Service) agreed that this judgment should be published.
In this case, the children had been having only indirect interim contact with the father (by way of video calls of 15 minutes each week) following allegations of coercive control and physical abuse. Any delay to these proceedings will have undoubtedly impacted both parents and the children whose welfare has not yet been assessed.
Indirect contact was ordered on an interim basis in April 2021, alongside provision that the children be joined to the proceedings and appointed a guardian by Cafcass. Cafcass subsequently indicated that they did not have the resources to accept their appointment, which HHJ Wildblood acknowledges is “now longstanding in this area”. NYAS were appointed, by way of solution, and a final hearing was listed to be heard in November 2021. The final hearing was then adjourned as NYAS had not been able to appoint a caseworker and did not know when they might be able to do so. The court therefore directed that a guardian should be appointed. HHJ Wildblood subsequently discharged NYAS and the children from the proceedings as “no effective progress has been made [since January or February 2021]”.
HHJ Wildblood states in his judgment that the focus during these proceedings has been the father’s contact with the children. The core issue in this case is the length of time during which interim contact arrangements have been ongoing, without foreseeable conclusion – the case has been listed for further hearings, with one to take place in May 2022 – a full 16 months before the court may be advised as to the welfare of the children concerned. This is particularly concerning in circumstances where directions had been ordered in advance of the Final Hearing and were not complied with.
For our clients, the impact of delays because of the court’s limited resources and the COVID-19 pandemic, particularly where contact with children has been limited for some time, can be hugely frustrating.
These issues seem to be here for the longer-term, particularly where bodies such as Cafcass and NYAS do not currently have capacity to accept new instructions or longer waiting times for reports due to their workload. There are several strategies which may mitigate these issues during children proceedings:
- Seeking permission from the court to instruct an Independent Social Worker (ISW) at the earliest opportunity;
- Considering mediation, a structured, interactive process involving an impartial third party (a mediator) to resolve conflict between parents/ parties by agreement; and
- In cases where mediation is not suitable, or has already been unsuccessful, considering arbitration. Arbitration is a private dispute resolution process which involves appointing a private judge, an arbitrator, to resolve disputes in a binding manner. However this is not normally suitable in cases where there are live safeguarding issues concerning the children, such as in Re K.
If the issues discussed in this blog affect you, please do contact us to discuss how we might be able to assist you.