Family law proceedings are a complex and sensitive area of law that must be handled with care and sensitivity. A number of emotionally-charged issues can develop within a family with the children at the centre of the dispute. Often, the need can arise to ensure the child’s experiences are taken into account during the course of private Children Act proceedings.
What is a children’s guardian?
Children’s guardians are appointed by the Court across a range of public and private children law matters. In the context of private law proceedings, such as an application for a child arrangement order, they are often appointed where it is considered by the Court that a children’s guardian would be in the child’s best interest to ensure that their voice is heard.
Children’s Guardians are qualified social workers. They are expert professionals who work closely with children and their families, employed by CAFCASS (Children and Family Advisory and Support Service). The CAFCASS officer’s aim is to safeguard and promote the child’s welfare.
It is important to remember that the child guardian is not appointed to advance the case of either of the parties as parents of the child.
As part of CAFCASS, they act independently within Court proceedings to speak on behalf of your children and ensure that their wishes and feelings are heard by the Court. Often, they have their own independent legal representation and appoint a solicitor within Court proceedings.
The Guardian is not appointed to make day-to-day decisions affecting your child’s life. Their sole purpose is to consider the best interests of the child. They do not have any parental responsibility towards the child.
What is CAFCASS?
CAFCASS is an independent body within private law proceedings that are appointed in all matters to provide the Court with independent advice in relation to the proposed arrangements and what would promote the safety, wellbeing and best interests of the children.
Is a child guardian necessary?
Children’s Guardians are not appointed in every private law matter that appears before the Court. Before appointing a Child Guardian, the Court will consider whether or not the best interests of the child are being represented by the parties involved.
It is important to appoint a Child Guardian if the Court are concerned that an independent representation of the children’s lives and how matters should develop going forwards is necessary.
They will not represent the views of the parties or local authority as they are completely independent.
Where the Court considers that the children’s best interests are not being represented or appropriately considered by the parties then under rule 16.4 of the Family Procedure Rules 2010, the children will be made party to the proceedings by way of a child guardian.
What situations will a Children’s Guardian be appointed?
The Children’s Guardian will be appointed by the Court in situations where the issues between the parties are becoming complex. This is usually common in the following situations where there are:
– allegations of harm against the child
– allegations or concerns in relation to safeguarding of the children
– allegations of parental alienation
– necessary involvement of third parties such the police or Local Authority
– requirements for experts to provide opinions, such as medical professionals in relation to psychological concerns of a party.
If a Child Guardian is appointed, what will they do?
The Child Guardian will liaise with the parties involved in the application to identify the issues between the parties and how best these can be remedied with a focus on the best interests of the child.
Working with the children, and spending time with parents and any other relevant family member or persons involved in the child’s life such as teachers or medical professionals, enables the officer to provide the Court with an expert opinion with a report, of how child arrangements should progress.
They will also instruct a legal representative to represent the child during the course of court proceedings.
What will the Child Guardian’s report include?
A Court Order will be made by the Court requiring the Guardian to file a Report. The Guardian will carefully consider the issues before the court and carry out further investigations in order to assist the Court in making a decision that is within the children’s best interests.
It will consider the interactions the Guardian has had with the child, family members, teachers, medical professionals, social workers and any other relevant party to assist the court in obtaining an independent view of the child’s life. The Report will consider the wishes and feelings of the child in detail before providing recommendations to the Court as to resolving the issues between the parties in light of the children’s best interests.
The report will be sent to the Court and all parties to consider prior to the next Hearing.
What if the parties disagree with the contents of the Child Guardian’s report?
Situations may arise where the children’s view and the Guardian’s view conflict. Depending on the age of the child, then the Court may consider that the child has the required maturity to share their own views. The legal representative appointed by the Child Guardian will advance the position of the child before the Court, not that of the Guardian in this instance.
Where the parties do not agree with the Child Guardian’s position this should be raised by their legal representative before the Court. Where there is concern as to the recommendations of the Guardian a Hearing can be listed to allow for the Guardian to give evidence and be questioned by the Court or parties in relation to their proposals.
The Court will consider all evidence provided by the parties, children’s guardian and any other party before determining what outcome is appropriate for the child’s future.
How long does the Child Guardian remain appointed?
Once the proceedings are resolved then there is no further role for the Child Guardian and they will cease involvement with the child and family.