Child Guardian

A court or legal authority may appoint a guardian in situations where a child’s interests may not be adequately represented. This typically occurs when social services are involved in the proceedings and there are concerns about the parents’ ability to look after the needs and interests of the child, such as due to illness, mental incapacity, or when the parents are themselves involved in the proceedings and the child’s interests are considered separate from theirs. The appointed guardian will decide on where a child lives and who they spend time with and specific duties to care for the child, including managing their well-being and personal affairs.

Guardianship is typically relevant for minor children who are under the age of majority, as they are not legally able to make decisions for themselves. A child guardian will be appointed when the family court requires an independent view of what has been happening in the concerned child’s life and what should happen in their life. When a child is under a certain age and unable to make decisions independently, the court may appoint a guardian to protect the child’s interests. The court will appoint a children guardian in child proceedings under the Children Act 1989. The guardian will be in contact with the parents and everyone involved in the case after being asked by the court to investigate the child matter. The guardianship of a child for a children guardian will cease to exist when the matter has been resolved by the court and they will have no further involvement with the child or the family.

Child proceeding cases can quickly become difficult and complex, especially in family law proceedings where the court may feel that the child’s best interests are not able to be properly considered by the parents. In such instances, the court may require the children to become a separate party to the proceedings. In care and other public-law proceedings, the court must appoint a Children’s Guardian unless satisfied it is not necessary to safeguard the child’s interests (Children Act 1989 s.41; FPR rule 16.3). In private-law disputes between parents, the court can make the child a party and appoint a Children’s Guardian under FPR rule 16.4, but only in cases with an exceptional level of complexity or difficulty, guided by Practice Direction 16A.

A child guardian is usually appointed in cases involving complications and difficulties. These matters may include:

• Cases involving minor children, especially where their welfare is at risk, such as allegations of harm to the child, including domestic abuse or concerns about alienating behaviours.
• Where agencies such as the Local Authority or police are involved.
• Cases where there are safeguarding concerns, or
• Cases where expert opinions may be required such as psychologists.

Although the majority of parents aim to act in their children’s best interests there may come a time when it is not possible for conflicting parents to reach an agreement as to what should happen to a child.

In child law proceedings the courts will provide guardianship of a child to a guardian from the local Cafcass office. This guardian is also known as a Cafcass guardian and will be a professionally qualified social worker with considerable experience of dealing with and working with children and families. The Cafcass guardian will only represent the child and will not work for you or the local authority which is involved in your case. They will be entirely independent.

Cafcass is the Children and Family Court Advisory and Support Service. The role of Cafcass is to consider the needs, feelings and wishes of a child and to safeguard the welfare of a child. The primary role of a Cafcass guardian is to make sure the wishes and interests of a child are protected. The Cafcass guardian will ensure the local authority arrangements and decisions which concern children will protect them, promote their welfare and are in the best interests of the children.

A Cafcass guardian will be responsible for making independent enquiries and consider the local authorities care plan. This is to ensure that the care plan proposed protects the children as well as promoting their welfare and is in their best interests. This will include ensuring that children are able to live with other family members or people associated with the children or ultimately reunited with their parents if it is safe and in the long term best interest of the child. The Cafcass guardian will also advise the court on what they think should happen in respect of the child.

When provided guardianship of a child the Cafcass guardian will spend time with the child and their family to try and establish what has happened and to determine the best interests of the child. In doing so, the Cafcass guardian will consider the child’s wishes and feelings, ensuring the child’s voice is heard when making recommendations to the court. Based on this they will provide the court their professional opinion on what the next steps should be.

The Cafcass guardian will prepare a report which will assist the court in reaching its decision. Where a Cafcass guardian has not been able to see the child or the family they will notify the court of this before preparing the Cafcass guardian report.

As the most important role of the Cafcass guardian is to protect the child’s welfare they will normally speak to those involved in the case which includes the parents and the family of the child, study the case and get to know the child. Their role may also involve liaising with other professionals such as teachers, social workers and health visitors. The Cafcass guardian may also attend meetings concerning the child, check the child’s personal records and recommend to the court other professionals which may need to be involved such as doctors or psychologists.

Who appoints a child solicitor

As well as advising the courts on what works need to be carried out before they can make a decision on your child’s future the Cafcass guardian will also be responsible for appointing a solicitor to represent your child. The Cafcass guardian will work closely with the child solicitor to present the case to the family court and may also give evidence in the proceedings. In some cases, particularly where there is significant conflict or complexity, the child may have their own solicitor to represent their interests independently.

The child solicitor in child proceedings will be responsible for presenting the child’s case in the court as well as calling any witnesses for the child. Whereas the children guardian, who has the legal authority to instruct the child solicitor on behalf of the child, will be responsible for telling the solicitor what they feel should happen with the child and the information to be placed before the court.

Where a court appoints a child guardian, the court will ask the children guardian to prepare a report. This is known as the Cafcass guardian report. The purpose of the Cafcass guardian report is to assist the court in making a decision about the child. The Cafcass guardian report will be based on the investigations carried out by the Cafcass guardian and will include information to assist the court. This information will be based on the wishes and feelings of the child as well as well as the guardians own recommendations as to what they consider is best for the child.

Although the Cafcass guardian report is primarily about the child it will also include information about and from other people involved which include the parents of the child and other professionals and experts such as teachers and healthcare professionals.

The Cafcass guardian report is private and confidential and is addressed and belongs to the court. However, the report will be sent to the parties of the proceedings which include the child solicitor, the parents and the local authority. The report is usually available in sufficient time to allow the report to be considered by you and your legal representatives prior to the court hearing. Even if you as a parent are not legally represented you are still entitled to view the report and receive a copy of the report either from Cafcass or by requesting it from the family court dealing with the matter.

The Cafcass worker who has guardianship of a child has specific duties, which include considering both the best interests and the welfare of the child and placing this before the court. However, this does not always mean they will make a recommendation based on what the interests and wishes of a child are. The guardian will usually provide their own recommendation to the court as well as outlining what the child wants. Where the views of the child and the guardian differ, the child solicitor may consider the child is mature enough to express their own view as to what should happen. The child solicitor will then act for the child and make it clear to the court that this differs from the recommendations of the child guardian. The guardians opinion and recommendations will still be provided to the court but not through the child solicitor.

Quite often parents of a child may not be agreeable to the views and recommendations of the guardian and therefore may dispute the Cafcass guardian report. In such situations the parents will usually be given an opportunity to consider and discuss the views and recommendations of the children guardian prior to the hearing with their representatives or obtain legal assistance and advice at this stage.

The parents or any other parties who are not agreeable to the Cafcass guardian report can also question the Cafcass guardian. The guardian can also be questioned by the court as well as the child solicitor and the local authority.

Once the Cafcass guardian report is prepared and submitted, it is ultimately the role of the court to decide what will happen to the child. The family court will consider evidence from all parties including the parents, the child solicitor, the local authority social worker as well as the children guardian. After listening to everyone involved the court will make its decision on the future of the children.

The courts acknowledge the role of the guardian is to recommend what they think is in the best interests for a child based on their assessment, and these recommendations are grounded in the guardian’s legal authority and legal status as an independent representative of the child’s interests. However, the court will decide on whether to follow this recommendation. If the judge is satisfied they may order for the child to go back to their parents if it is safe for and in the best welfare of the child.

In some situations, the court may order for the local authority to find a new home for the child if it is not safe for them to live with the parents. The new home may be with other members of the family or friends or it may be a new home altogether.

It is important to note that the child guardian is not representing you as the parents of the child. They are only appointed to represent the best interests and the welfare of a child. However quite often the guardian may not recommend what the child’s wishes and feelings are. The child guardian is responsible for considering the welfare interests of the child, but these may differ to what the child guardian believes should happen. In such a situation the introduction of a child guardian may not help your child proceedings case.

The recommendations of a child guardian may also be based on their investigations and the views and evidence of other people such as the opposing parent or the local authority who are also involved. Although the Cafcass guardian is independent they may not always help your case especially where you may have been portrayed negatively by your opponent or the local authority.

Our Child Law specialists advise you to seek legal advice when the courts are considering the introduction of a child guardian. We have seen cases where the appointment of a child guardian has caused more damage to cases. We therefore recommend you seek legal advice and prepare yourself ahead of the guardian being appointed.

Our family law specialists are well equipped to guide you on legal guardianship and help you navigate complex cases involving child guardians. Our family-law team can help you understand a Children’s Guardian report, prepare your response, and consider whether and how to question its recommendations. Contact us today for a consultation on how we can assist you.

With the guardianship of a child can the Cafcass guardian make day to day decisions for the child?

It is important to note that when a guardianship of a child is given to a Cafcass guardian they are not provided with parental responsibility of a child. Therefore, the day to day decision making for a child is not provided to the children guardian. However significant changes which affect the welfare of a child which may include the health of the child, living circumstances and contact should be communicated with the Cafcass guardian. The guardian is also not able to provide assistance with transporting the children to and from the hearings and are also not responsible for assistance in arranging or supervising any child contact. The purpose of the child guardian is to consider what should happen in the best interests of the child.

Will the appointment of a guardian help my case?

Careful care and attention should be given before agreeing to a guardian being appointed in child act proceedings; you should therefore consider securing legal advice on the benefits and disadvantages.

The fundamental advantage of a child guardian being appointed is that the interests of the child will be placed before a court. This may not have been a case where the dispute between the parents has become so entrenched that neither may be able to focus fully on the child’s own needs. Although a child guardian may be beneficial, they will not have a full insight of the family life. They will only investigate what has happened and by liaising with the other parent, or the local authority they may develop a negative view of one parent without fully understanding the issues which have taken place.

Whether a Children’s Guardian helps or complicates your case depends on the facts. We can help you weigh the advantages and disadvantages before the court decides, and prepare properly whichever way the decision goes. You should carefully consider that the appointment of the guardians will add to further legal costs as well as complexity; something that is rarely raised or considered during proceedings.