Written evidence from Nichole Tonkmor
Sarsfield (FC 17)
INTRODUCTION
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.
FACTUAL INFORMATION
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.
RECOMMENDATIONS
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
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