In private law court proceedings, where parents are in disagreement about the contact or living arrangements for their children; in certain circumstances, the Court will give consideration to the appointment of a Children's Guardian (under Rule 16.4 Family Proceedings Rules 2010).
The Court may be concerned that the children's interests are not protected by either parent, and feel that their welfare requires the appointment of independent representation.
Why is a Children's Guardian Appointed in Private Law Proceedings?
Quite often the Court will need the assistance of an independent professional to help with a situation that has become significantly difficult. The Guardian will only be appointed if the children are made party to the proceedings. They will have their own legal representation. The Guardian will be an officer from CAFCASS.
What is the role of the Children's Guardian in Private Law Proceedings?
The primary consideration for the Court is what is in the child’s best interests, and to keep the Court focused on this issue.
All steps and decisions the Guardian takes in the proceedings must be taken for the best interests of the children. The Guardian must fairly and competently conduct the proceedings on behalf of the children.
The appointment of a Guardian will ensure the children will have an independent voice in proceedings where there is conflict and disagreement between parents.
The Children’s solicitor will usually take their instructions from the Children's Guardian. Unless the child has a clear understanding of the Court process, and of the consequences that their instructions will have upon the decision the Court go on to make.
Assessing a child’s competence...
The Solicitor will need to assess the child’s competence to give instructions directly. Their emotional intelligence and maturity must also be taken into account. Age is a consideration but not a deciding factor.
If the child is not deemed to be competent the Solicitor will continue to take instructions from the children’s Guardian. Again, the Solicitor must always act in furtherance of the best interests of the child.
Whilst a child’s wishes and feelings are very important and should always be known to the Court; this is just one factor the Court must consider when deciding the application in hand. The Court must be mindful of the welfare checklist in all cases. It is however, right to say that the Court will place greater reliance upon an older child ‘s wishes and feelings. But these are not determinative of the decision the Court must make.
It may also be appropriate for children to meet with the trial judge to express their wishes and feelings about what should happen. The children must be prepared by their Solicitor and the Guardian before such a meeting. They must understand that this is not an opportunity to give evidence, and guidance must be followed which regulates these meetings.
Please also see my previous blog dated July 2018, concerning Children in court proceedings meeting Judges.
