When is a Children’s Guardian Appointed in Private Law Proceedings?
Updated: Aug 20, 2021
A child guardian is more so known to be involved in public law (care cases) that involve social services, however, the use of a child's guardian is becoming more common across private law (child arrangement) proceedings.
What is a Child Guardian?
A child guardian is a qualified social worker, who is experienced in working with children and their families.
Why Would a Child Need a Guardian?
Usually, in child arrangement proceedings, Cafcass are involved to promote the children’s welfare during the court process, they will speak to the parents and the child and make reports, known as safeguarding reports and Section 7 reports.
However, when there is a concern over the child’s voice being lost within the proceedings, the court may require the child to become a separate party to the proceedings.
It is under 16.4 of the Family Procedure Rules that the court has the power to make a child a party to the parties.
In this situation the court will appoint a child guardian in the proceedings.
The child will then have their own legal representation.
What is the role of a Child Guardian?
The main role of a child guardian is to ensure that the child is protected and ensure that the child will have an independent voice in proceedings where there is conflict and disagreement between parents.
The child guardian will be responsible for instructing the child solicitor and working with the solicitor as to what they feel should happen with the child and the information is then placed before the court.
This is unless the child has a clear understanding of the court process and of the consequences that the instructions will have upon the decision the court goes on to make. Sometimes it may be the case that, when a child's guardian is recommending something to the court that is not following the child’s expressed wishes and feelings.
Gillick v West Norfolk and Wisbech Area Health Authority  AC 112
When the child wishes to give instructions independently, the solicitor will need to assess the child’s competence to do so. This is known as; Gillick competence.
Age is an important factor when making this decision but is not the overriding factor – emotional intelligence and maturity is also considered.
If the solicitor concludes that the child is competent, they will take instructions from the child directly. The Child Guardian will continue to play a role and will continue to make recommendations to the court either directly themselves or through another solicitor.
If the child is not deemed to be competent then, the solicitor will continue to take instructions from the child's guardian.
What is a Cafcass guardian report?
Where a court appoints a child guardian, the court will ask the children guardian to prepare a report.
The purpose of the guardian report is to assist the court in deciding for the child.
This information will be based on the wishes and feelings of the child as well as the guardian's own recommendations as to what they consider is best for the child.
Will the Appointment of a Guardian Help my Case?
Careful consideration should be given before agreeing to a guardian being appointed in child arrangement proceedings.
The advantage of a child guardian being appointed is that the child's voice will be placed before a court by the child directly via the child's guardian and/or solicitor.
Although a child guardian may be beneficial, the appointment of the guardian need to be seriously considered. Further legal costs will be incurred, and there is an added complexity to having a guardian involved. That said, the appointment of a guardian can advance and help a case.
This blog article should not be taken as Legal Advice.
If you need help with Family Law Matters / Children Act Matters, please feel free to contact us on our website at; Help@inCourt.co.uk or call us on; 07375757510