Guardian Ad Litem in UK Law

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.

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.

It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the Judge, tocomment on it, to challenge it, and if needs be to combat it and to try to establish by contrary evidence that it is wrong.

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.

That means that the presumption of legitimacy now merely determines the onus of proof. Once evidence has been led it must be weighed without using the presumption as a make-weight in the scale for legitimacy. So even weak evidence against legitimacy must prevail if there is not other evidence to counterbalance it. The presumption will only come in at that stage in the very rare case of the evidence being so evenly balanced that the Court is unable to reach a decision on it.

There is, first of all, the duty to protect the infant, particularly when engaged or involved in litigation. This duty is of a general nature and derives from the Court of Chancery and to some extent also, I believe, from the Common Law Courts which were merged along with the Court of Chancery in the High Court of Justice by the Judicature Act of 1873. It recognises that the infant, as one not sui juris may stand in need of aid.