The rights and needs of children are of paramount importance in the eyes of the law.
One way of offering them a voice during legal proceedings is through the appointment of a guardian ad litem.
Generally, a guardian will be assigned to any child involved in supervision or care proceedings. That person, who is almost always a representative provided by Cafcass (Children and Family Court Advisory and Support Service), acts on behalf of the child in court and ensures any decision is made in their best interests.
As part of their responsibilities, the guardian usually selects and appoints a solicitor to represent the child and advises the guardian, who in turn will help the court to consider outcomes for the children in the proceedings.
This doesn’t tend to happen in private law, where issues are between parents or extended family. There is usually no guardian involved and, although Cafcass is often asked to provide an independent report, its role is usually limited in cases where some contact has been agreed by the parents.
However, times are changing and we are seeing an increase in guardians being appointed for children in private children proceedings. There are a number of reasons for this.
It could happen where one party is self-represented and the court feels that that psychological reports or other expert testimony is needed, or where the court feels that significant findings of fact need to be made.
In cases where there is considerable conflict between both parents over access to the child, sometimes referred to as ‘implacable hostility’ cases, a guardian will be appointed.
A court will usually put a guardian in place for the child if it is believed the child may not be safe or will be adversely affected by the conflict, between the parents, which can originate in either parent.
Once a court has decided to appoint a guardian, there can be benefits for all parties. The child has an independent social worker and an independent solicitor acting in their best interests.
Where older children are involved, whose opinions will be very important to the court, a guardian will seek these views and feed them back to the court. The guardian’s solicitor can also advise older children directly.
In addition, the view of the guardian can be seen as an independent view, sometimes a very helpful check on the conflicting views of parents or extended family, with the help of an experienced family lawyer to advise the guardian.
Collaboratively trained and a qualified mediator, she has modernised South Yorkshire Resolution since becoming chair in 2013 and is also a member of the Law Society’s Family Law Panel and the Children Panel.
She can be contacted on 0114 290 6232 or at firstname.lastname@example.org.