Operation of the Family Courts - Justice Committee Contents

Written evidence from Nichole Tonkmor Sarsfield (FC 17)


1.  I have firsthand experience of how Cafcass actually operates and effects the decision making processes of the Court rather than the theoretical model that is constantly presented.

2.  I am the parent of children "represented" (and I use the term loosely) in children's proceedings by a Guardian provided by Cafcass. The proceedings started more than four years ago. There have been dozens of hearings before 15 different Judges.

3.  I have had 2½ years experience of my children's best interests supposedly being represented by Cafcass.

4.  I had numerous meetings and telephone conversations with several Cafcass managers of different levels of seniority to discuss the role of the Guardian, the limits to his authority, the authority of Cafcass when he is not complying with Court orders, and the Court's over dependence on the singular opinion of the Guardian.


5.  In my experience the effect of Cafcass on Court proceedings has been to disrupt them. The Children's Acts and the Family Proceedings Rules lay out quite clearly how many of the issues that come before the Court should be handled. However, the influence of Cafcass has persuaded many of the Judges in my case (and I am sure in others) to abandon the rules, thereby abolishing the Children's Acts and Family Proceedings Rules by judicial decision.

6.  Initially, the major issues in my case were about unsupervised contact with the non-resident father because no-one knew where he lived and the eldest child had been taken to a secret flat to which she did not want to return. Social services advised that the father should not be allowed unsupervised contact. The father applied to Court for unsupervised staying contact giving an address which he admitted was not where he lived.

7.  After various disputes about the welfare of the children, the father requested the Court appoint a Guardian. The appointment was made in April 2008.

8.  In my case the Guardian has repeatedly made recommendations to the Court without making any of the required checks or providing evidence. Many Judges (although not all) have accepted the Guardian's recommendations even when those recommendations breached the law, the Family Proceedings rules and Cafcass' own policies.

Effect of Cafcass on Human Rights of Children

9.  There were many issues where the Guardian recommended against the express wishes of the children, but did not inform the Court that the children's views were opposed to his.

10.  There were hearings to determine whether the father would be allowed to change certain aspects of the children's lives. The elder child was vehemently opposed to the changes. The younger child decided to agree with both the father and the elder child not realising their views were diametrically opposed. When the father applied to Court to enforce the changes the Guardian wholeheartedly supported him. The father submitted his evidence, most of which he was allowed to keep secret from me. I submitted my evidence which contradicted his. The Judge had a solicitor's clerk independently check the evidence by making telephone calls. This confirmed that it was my evidence that was correct. The Judge asked the Guardian about the checks he should have made. The Guardian was forced to admit that he had made no checks and was making his recommendations solely based on what the father had told him. This was a frequent occurrence throughout the proceedings.

11.  On this occasion the Judge went against the Guardian's recommendation saying:

"… it would be an affront to her" to make the order "against her will"

12.  On realising that the Guardian was misrepresenting her views, my eldest child at 10 and 11 years requested to attend Court to speak for herself. The Guardian has always recommended to the court that she not be allowed to attend and all Judges faced with this issue have conceded to his recommendation. If she were accused of a serious criminal offence she would be tried to all intent and purpose as an adult and required to attend Court. In what way are my daughter's human rights protected when her requests to be heard are suppressed?

Effect of Cafcass on Process of Changing the Guardian

13.  After six months on the case, there were several problems, arising as a result of the Guardian refusing to comply with the Court's orders. I was (sarcastically) advised by the solicitor for the Guardian to make an application to the Court, which I did, asking for the Guardian's removal. When my application came before the Judge, Counsel for the Guardian supported Counsel for the father's request for a Section 91.14 order to restrict my ability to make applications. Counsel for the Guardian also requested that the Guardian be given the authority to decide if and when I may go to see my MP. Both requests were granted despite the first being unjustified and the second being unconstitutional. The Guardian's breaches were ignored.

14.  Eight months after his appointment I asked Cafcass to change the Guardian. Cafcass refused saying they could not remove him from the case, only the Court could discharge him. Cafcass claimed only parties to the case, not they, could usually make such an application.

15.  In a later hearing the father's Counsel requested I be prevented from seeing my MP. The Guardian again supported this ban. Initially, the Judge was in favour of granting the request until they explained that they believed my reason for visiting my MP was to seek assistance to prosecute the father's for perjury and contempt of court.

16.  After 18 months with Mr M the case transferred from the High Court in London to a provincial High Court. Following further breaches of Court orders, I again requested that Cafcass remove Mr M from the case. Again, Cafcass claimed they were powerless to intervene.

17.  This is an extract from a Cafcass senior manager's letter dated 20 January 2010 explaining the Cafcass position on the appointment/changing of a Guardian.

"I do need to repeat at the outset what I think Ms A did explain in one of her letter to you that we do not have the power or authority to remove the Guardian ad litem, Mr M from your case. When the court appoints a Guardian ad litem to instruct a solicitor to represent children in family proceedings, it does not name the Guardian ad litem in the order, but leaves it to Cafcass to allocate to an individual practitioner.

However, once a practitioner has been allocated to the case, he/she is "appointed" by the Court and can only be removed from the case by means of a termination of that appointment by the Court. This means that if any party wishes to propose a change of Guardian ad litem, an application to the Court would need to be made so that the Court can consider whether the change would be in the children's best interests. In the County Court and High Court, the termination of appointment would be effected under rule 4.14 of the Family Proceedings Rules 1991 and before giving the order the Court has to give all parties the opportunity to make representations on the application if they wish to do so.

I appreciate that you are aware of this as I think you have previously applied to the Court to have Mr M discharged from being your children's Guardian ad litem, but I do need to be clear with you that Cafcass is in the same position as any other party to a case with regard to the removal of a Guardian ad litem. That is to say that in order for Cafcass to remove a Guardian from a case we would have to apply to the Court like any of the parties on the proceedings. Cafcass would only apply to the court for the discharge of a Guardian ad litem when exceptional circumstances would make it impossible for the Guardian ad litem to continue to be involved—such as the Guardian ad litem being no longer available for work because of sickness, suspension, dismissal, or resignation.

I have perhaps laboured this point, but, as you stated when we met in October that one of the outcomes you wanted to achieve through making you complaint was that Mr M be taken off your case, I wanted to be sure that you are clear that Cafcass has found no reason to apply for Mr M to be discharged from your children's case. His conduct in your case has been examined by his managers who have the responsibility for the day to day supervision of the practitioners in their team and for ensuring that Cafcass practice guidelines and procedures are met. He has also been interviewed by Ms A who as a Head of Service, is a senior manager in Cafcass responsible for ensuring that staff performance and practice standards are met and taking appropriate steps with regard to staff who do not meet expected standards."

18.  In May 2010 one set of proceedings ended and another commenced. On realising the Guardian could remain on the case for the foreseeable future Cafcass decided that they would have to take action to remove him. They did not however tell the other parties or the Court about this. They simply instructed the first Guardian to ensure he was not re-appointed. The Guardian however, when asked by the Judge whether he could decide on the issue of Guardianship said, contrary to his instructions, that he could decide and requested his own reappointment. Cafcass gave no direct instructions to the Court at this point.

19.  The Guardian then chose Court dates for hearings that were some months in the future citing workload pressures. In June 2010 I telephoned his manager about his workload in an attempt to pull hearings forward. His manager, Mrs C did not know he had instigated his own reappointment against her instructions and decided to write to the Court immediately asking for his removal. She also made arrangements with the provincial Cafcass office to take over the case. All managers in Cafcass now claimed this was usual procedure when they wanted to change the Guardian.

20.  In August 2010 with a directions hearing fast approaching this transfer had not been enacted. I contacted the provincial office who made enquiries. They were the ones who informed me that the Guardian had been told in May 2010 not to allow his reappointment and to send them the file. He was also instructed by Cafcass to write to the Judge and apologise for misleading the Court, which he did not do. He did however continue to give instructions to both the solicitor and Counsel right up to the August 2010 hearing, neither of whom knew he was not supposed to be representing the children and on his instruction submitted written and verbal statements to the Court that were not true. Cafcass management had not informed anyone of events in May 2010. Consequently, at the hearing in August 2010 I was the only person in Court who had found out what Cafcass had actually instructed Mr M to do, and I had discovered this by accident. Mr M was not allowed to attend the hearing by his manager. The provincial office had not been able to allocate an officer in time to attend the hearing because Mr M had not transferred the file to the provincial office, so no Guardian was present.

21.  The Family Proceedings Rules state in Rule 4.12:

(4)  The guardian ad litem shall, unless excused by the court, attend all directions appointments in and hearings of the proceedings and shall advise the court on the following matters—

22.  The Judge found out on the day of the hearing that no Guardian was attending.

23.  Immediately prior to the commencement of the hearing, Counsel for the Guardian told me that Ms T had been appointed as the new Guardian. Counsel then went into Court and under the instruction of Mr M (old Guardian) asked the Judge for an order to command the manager of the new Guardian to appear before the Judge a week later to explain why she (the manager) had not appointed a new Guardian and to explain the delay. Of course, Counsel knew the manager had appointed a replacement as she informed the parties before entering the Court. The only reason for the delay in the appointment had been Mr M's retention of the case file. Counsel for the old Guardian agreed to serve the order on the Manager of the new Guardian (but as she did not know where that office was the order was not served in time). I did not make this up, they did it!

24.  The Judge was not sure who was going to be the Guardian in future. I explained that Counsel for the Guardian had told me the name of the proposed Guardian that morning and this had since been confirmed by the provincial Cafcass office so the order was redundant.

25.  The Judge who was rather surprised and unsure what to do said he had received a .letter from Mrs C, Mr M's manager, asking for Mr M to be discharged. She had also explained that the Judges did not need to make an order for the Guardian to be changed. Hence, the order, specifically naming Mr M, stayed in force but as far as Cafcass were concerned he was not the Guardian. The new Guardian was appointed by a process not prescribed in any of the rules or laws.

26.  The new Guardian initially appointed new solicitors due to her and her manager's dissatisfaction with the attacks on them by Mr M's legal team. Two weeks later however they backtracked on wanting a new team to look at the case with fresh eyes and kept Mr M's legal team on the case. They were given no directions for the final hearing because the directions' hearing was wasted due to the manipulations of the first Guardian in his attempts to remain on the case.

27.  None of this complied with the Family Proceedings Rules or Cafcass's own rules. When Mr M's Manager wrote requesting his removal it was a contradiction of what Cafcass had said eight months before in response to my request for them to change the Guardian.

Effect of Cafcass on Court Decisions

28.  Of the 12 Judges who have consulted the Guardian only 2 have gone against his recommendations. This was because it was embarrassingly obvious that the Guardian's recommendations were purely designed to oppose me.

29.  As a result of the Guardian's recommendations both of my children, then aged four and nine years, were the subject of a transfer of residency 10 days after the application even though no-one, including the Guardian, knew where the father lived. The father admitted he had lied about his address for 2½ years and resigned his job on a whim six months prior to applying for residency. This was ignored.

30.  The children were transferred to the father at 2.30 am in a motorway service area car park supervised by the Police. It was so late because the Police had spent five hours trying to contact the father at the address he used on paperwork even though everyone involved in the case knew he did not live there.

31.  Cafcass's influence has been to persuade the Court's to confer powers on Cafcass that the Court does not have the power to give. There has been a period of time during which the Court granted an injunction preventing me from seeing my MP. When this specific point was brought back before a Judge she agreed to the request by Counsel for the Guardian that the Guardian would be allowed to determine if and when I could see MP even though it was unconstitutional.

Confidentiality (or Secrecy) and Openness in the Family Courts

32.  In my opinion most of the people, lawyers and Judges included, who commit wrongdoing in Court at present would be far less likely to do so if secrecy was removed. Judges have the power to make any aspects of the proceedings secret that may be required as in rape cases.

33.  Currently, if a party wants family members or journalists in Court they have to make an application. If any other party objects, particularly the Guardian then the application fails. It is supremely easy to maintain secrecy at present despite the changes to the rules that came into effect in April 2010. The rules intended to achieve openness are too weak. At present a case still has to be made for openness, which should be the norm. There should be strong evidence before the Court can impose secrecy.


34.  There should be an inquiry into the functioning of Cafcass. The methodologies they apply are fundamentally flawed. There is a lack of management control of which managers are unaware. There is a lack of accountability of which they are also unaware. The training and/or recruitment processes are lacking given the number of staff who operate according to contradictory procedures and are unaware of the legal requirements of their jobs. And the complaints procedure is managers investigating their own management failures and finding nothing wrong.

35.  Guardians should be part of the Court Service, and therefore under the Ministry of Justice. The Agency model fails spectacularly on every level. The Courts cannot have clarity and direction if they are consistently misinformed by people over whom they have no control.

February 2011

previous page contents next page

© Parliamentary copyright 2011
Prepared 14 July 2011