Guardian Ad Litem in UK Law

Finally, I must say that over and above all the interests of the child, there is one overriding interest which must be considered. There is at hand in these days expert scientific evidence - by means of a blood test – which can in most cases resolve the issue conclusively. In the absence of strong reason to the contrary, a blood test should be made available.

It derives from the right and duty of the Crown as parens patriae to take care of those who are not able to take care of themselves. Even if there was no property and the child was not a ward of court, nevertheless the Court of Chancery had power to interfere for the protection of the infant by making whatever order might be appropriate. That was made clear by Lord Cottenham, Lord Chancellor, in Re Spencer (1847) 2 Phillips, page 247, where the infants were not wards and there was no property.

For the purposes of RSC 80 – and, now, CPR 21—the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings.

Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more of less than even; in the amount of damages which it awards.

In effect, such vital elements in the care plan would be 'starred' and the court would require a report, either to the court or to the guardian ad litem (in future to CAFCASS), who could then decide whether it was appropriate to return the case to court in the way discussed earlier.

I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment.

The duty of the High Court as respects the affairs and welfare of infants falls into two broad categories. There is, first of all, the duty to protect the infant, particularly when engaged or involved in litigation. It recognises that the infant, as one not sui juris may stand in need of aid. He must not be allowed to suffer because of his incapacity.