Re K (Inability to Instruct a Guardian) [2022] EWFC B4

This was a very short, but very important judgment handed down by HHJ Wildblood QC on 25 January 2022. Of particular interest is the fact that ‘the three legal representatives agree that it is in the public interest that this anonymised judgment should be published’ [1].

This matter was a private law matter which had been issued in January 2021, therefore 1 year ago. On 30 April 2021, a Recorder had joined the children as parties to proceedings and ordered that they should be represented by a Guardian, appointed by Cafcass. The Recorder also ordered Father to have indirect contact only.

Cafcass were unable to appoint a Guardian pursuant to Rule 16.4 Family Procedure Rules due it’s workload. This was something HHJ Wildblood QC accepted and indicated it was a longstanding issue in that area. HHJ Wildblood QC therefore appointed the National Youth Advocacy Service (NYAS) as a Guardian.

NYAS could not appoint a caseworker. Again, like Cafcass, this was due to their caseload. HHJ Wildblood QC therefore directed NYAS to appoint an Independent Social Worker (‘ISW’) to report to the Court. NYAS later wrote to the Court to say the Legal Aid Agency had refused to extend NYAS’ legal aid certificate for the instruction of an ISW.

HHJ Wildblood QC was therefore left with a situation where Cafcass couldn’t act as a Guardian, NYAS couldn’t appoint a caseworker to act as a Guardian, and an ISW couldn’t be instructed. No progress was made in relation to the substantive case in the interim due to these issues. As a result, HHJ Wildblood QC discharged the Children and NYAS from proceedings and considered that ‘there will be no more guardian appointments in these proceedings’ [13]. A Section 7 report was ordered as an alternative.

HHJ Wildblood QC stated that NYAS and Cafcass’ inability to appoint a Guardian was not their fault. ‘The workload of both organisations is such that they cannot accept the appointment’ [11].

The fact that it was agreed by all parties that it was in the public interest to publish such judgment is telling. Such judgment highlights the very real strain that the Family Justice System is currently experiencing and the impact this is having on children and families in these sorts of situations.

The link to the judgment can be found here: