Working with Children
| Author | Safda Mahmood/Julie Doughty |
| Pages | 195-208 |
15.1 Appointment and role of the children’s guardian
The children’s guardian is a person appointed by the court to act for a child aged under 18. In cases under the CA 1989, a children’s guardian should be appointed in ‘specified family proceedings’ (section 41(6); see para 15.1.3) unless the court is satisfied that it is not necessary to do so, and may also be appointed in certain non-specified proceedings. The provisions governing the appointment and functioning of a children’s guardian are in sections 41–42 of the CA 1989, and Parts 12, 14 and 16 of the FPR 2010. In A County Council v K and others [2011] EWHC 1672 (Fam), the then President of the Family Division, Sir Nicholas Wall, clearly explained that the personal appointment of the guardian makes the guardian accountable to the court for their professional judgment in representing the child’s interests during proceedings.
The children’s guardian should be independent and has a duty to investigate the circumstances of the case thoroughly, interviewing parties and witnesses and examining all available evidence. The children’s guardian should interview all those who may be able to give relevant information about the child’s life and circumstances and also the child and her family, and may request any necessary further information or assessments and then evaluate all the evidence. The children’s guardian has a duty to advise the court of the child’s wishes and feelings; to inform the court of the child’s circumstances, bearing in mind the welfare checklist; to evaluate all the options open to the court; and lastly to advise the court on the best way forward in the interests of the child.
Children’s guardians may be employees of CAFCASS or they may be independent social workers who may have a contractual arrangement with CAFCASS for the taking of cases (but not employed by) CAFCASS. See Chapter 4, para 4.7 for information about CAFCASS, which comprises the former Children’s Guardian and Reporting Officer Service, the Family Court Welfare Service and the Children’s Branch of the Official Solicitor’s Department, see sections 41–42 of the CA 1989, and Parts 12, 14 and 16 of the FPR 2010. In Wales, these functions are undertaken by CAFCASS Cymru, which operates under the Welsh Government.
196 Child Care and Protection: Law and Practice
For further information, see the CAFCASS website, www.cafcass.gov.uk, the CAFCASS Cymru website, https://beta.gov.wales/cafcass-cymru, and the website of NAGALRO (Professional Association for Children’s Guardians, Family Court Advisers and Independent Social Workers), www.nagalro.com.
15.1.1 Official Solicitor
The Official Solicitor is an independent statutory office holder. His office, and that of the Public Trustee, is an arm’s length body of the Ministry of Justice. A key role of the Official Solicitor is to act as a last resort litigation friend, and in some cases, solicitor for children (other than those who are the subject of child welfare proceedings), and for adults who lack mental capacity in litigation. Also, the Official Solicitor acts, on behalf of the Lord Chancellor, in cases of international child abduction, through the International Child Abduction and Contact Unit. The most common examples are listed in the Practice Note: The Official Solicitor to the Senior Courts: Appointment in Family Proceedings and Proceedings under the Inherent Jurisdiction in Relation to Adults (January 2017).
This practice note for solicitors contains specific information about: (a) the appointing of the Official Solicitor as litigation friend of a child in family proceedings or a protected party; (b) requests from the court for the Official Solicitor to conduct Harbin v Masterman [1896] 1 Ch 351 enquiries; and (c) requests from the court for the Official Solicitor to act as, or appoint counsel to act as, an advocate to the court. The Official Solicitor will seek to determine the child’s best interests within the litigation and take all measures necessary within the proceedings for the child’s benefit. Further information can be obtained from the Official Solicitor and Public Trustee Department, Victory House, 30–34 Kingsway, London WC2B 6EX, enquiries@offsol.gsi.gov.uk and www.gov.uk/government/ organisations/official-solicitor-and-public-trustee.
15.1.2 Public funding, access to information and disclosure
A child who is subject to ‘specified proceedings’ is entitled to publicly funded legal representation. A solicitor may be appointed for the child by the children’s guardian or by the court. In the event of a conflict between the child and the children’s guardian, a child of sufficient understanding may wish to choose his or her own solicitor, which is acceptable, provided that the appointment complies with section 41(3) of the CA 1989 and the duties of the solicitor under rule 16.29 of the FPR 2010.
The children’s guardian has access under section 42(1) of the CA 1989 to all social work files and records and, if any of these documents are copied by the children’s guardian, they are admissible in evidence before the court (section 42(2)). See the case of Re T [1994] 1 FLR 632 in which the local authority refused to disclose records of potential adopters to the children’s guardian, but the Court of Appeal ordered that the children’s guardian should have access to them under the terms of section 42.
The children’s guardian may ask for access to medical or psychiatric records of the child, and may wish to see the health records of others involved in the child’s life. Note the case of Oxfordshire County Council v P [1995] 1 FLR 582 concerning the issue of how confidential information should be treated by children’s guardians.
The report of the children’s guardian is confidential to the court and the parties, and permission of the court is required to disclose the report to others (or for use in other cases) and also to withhold information from parties. Leave to withhold information from parties may be sufficiently serious to warrant a High Court hearing, see Re M (Disclosure) [1998] 2 FLR 1028. See the later case of Local Authority v HI and others [2016] EWHC 1123 (Fam). Here, it was emphasised that the court needs to strike a careful balance between allowing the child’s confidentiality to be respected, versus the need to enable the local authority to share relevant information if it goes towards the care plan. The power of the court to control evidence is set out in rule 22.1 of the FPR 2010.
The children’s guardian in specified proceedings may bring applications on behalf of the child, or the child’s solicitor may do so, if the child is of sufficient age to instruct separately (see para 15.2).
Good Practice in Child Care Cases (The Law Society, 3rd edn, 2015) is a concise guide to best practice for solicitors acting in public law cases, whether they are acting for a local authority, a parent or a child. The Law Society Practice Note, Acting in the absence of a children’s guardian (15 May 2017) provides guidance to solicitors appointed by the court to represent children in proceedings where there are delays between the order appointing a children’s guardian in specified proceedings and the allocation of a children’s guardian. Note that solicitors representing children must remain mindful of the guardian’s duties under FPR 2010 PD 16A, which sets out the children’s...
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