Legal provision for separate representation of children

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Legal provision for separate representation of children

2.11 At common law, parents have the right to conduct litigation on their child’s behalf unless there is a conflict between the parent’s and the child’s interests.21 Children may in fact be separately represented in private law proceedings through a variety of mechanisms. Section 10(8) of the Children Act 1989 enables a child to seek leave to apply for a s 8 order, which leave may be given if the court is satisfied that he has sufficient understanding to make the proposed application.

Under the Family Proceedings Rules 1991 (as amended) r 9.2A, a child may bring or defend proceedings under the Children Act or the inherent jurisdiction if the court gives leave or if a solicitor acting for the child considers that the child is able to give instructions in relation to the proceedings. The court can override the solicitor’s opinion and decide that the child is not so competent23 but Thorpe LJ has said that ‘in the 21st century, there is a keener appreciation [than hitherto] of the autonomy of the child and the child’s consequential right to participate in decision making processes that fundamentally affect his family life.’

2.12 A CAFCASS officer appointed in proceedings between the parents must consider whether it is in the best interests of the child for him or her to be made a party and advise the court accordingly. Rule 9.5 (as amended) then provides that: ‘if in any family proceedings it appears to the court that it is in the best interest of any child to be made a party to the proceedings, the court may appoint - ‘(a) an officer of the Service or a Welsh family proceedings officer, (b) (if he consents) the Official Solicitor, or (c) (if he consents) some other proper person, to be the guardian ad litem of the child with authority to take part in the proceedings on the child’s behalf.’

2.13 The appointment of a guardian ad litem under this rule is the main mechanism utilized where a court reaches the view that the child’s interests cannot adequately be identified or served either by means of the evidence and arguments presented by the parties to the proceedings, or the information provided by the Children and Family Reporter in his or her report to the court. It is important to understand that the role of the guardian ad litem in such a case, and the use of the ‘tandem model’, is welfarefocused, or, as Thorpe LJ has put it:

‘essentially paternalistic. The guardian’s first priority is to advocate the welfare of the child he represents. His second priority is to put before the court the child’s wishes and feelings.’

In cases where these priorities conflict, the child can seek leave to dismiss the guardian and instruct the lawyer directly to present his wishes and feelings, but only where he is sufficiently ‘competent’ to do so.

2.14 Where a guardian is to be appointed, the President’s Direction provides that the court must first give consideration to appointing an officer of CAFCASS to that role and must enquire whether CAFCASS are able to comply. Where that would cause delay, or there is some other reason which renders the use of CAFCASS inappropriate, someone else may be appointed. This may be an individual solicitor known to the court, or NYAS, the National Youth Advocacy Service. For example, in Re C (a child) the Court of Appeal approved the appointment of NYAS because the 14 year old child (who had Asperger’s Syndrome) had lost faith in the CAFCASS officer who had acted as the Child and Family Reporter, and wanted someone ‘to see him, to listen to him, and to appreciate his point of view’. In the view of Wall LJ, the officer had reached the limit of what he could achieve, and further CAFCASS involvement might prove counter-productive.

2.15 The President issued guidance (February 2005) to attempt to curtail what was described as a ‘dramatic increase’ in the number of guardians in private law cases. For an interim period, pending full implementation of the Private Law Programme, from 4 April 2005, only a circuit judge may appoint a guardian in a private law case, unless a district judge considers the case to be exceptional because there is no resident circuit judge and the matter is urgent. Where a guardian is appointed, consideration must be given to transferring the case to the High Court.