Why would this be required?
Parents will sometimes appoint a legal guardian for a child, for example when making a will or if a child has special needs, but it can come as a surprise to parents if a court orders the appointment of a children’s guardian during Family proceedings. When parents separate, the focus of family law proceedings naturally shifts to the welfare of their children, and sometimes an independent professional is necessary to ensure the child’s wishes and feelings will be heard.
While parents are encouraged to reach agreements that are in their children’s best interests, there are often circumstances where an independent voice is needed to represent their child’s perspective directly to the court. This can happen in a dispute when you are at loggerheads and the court thinks your child needs their own voice and separate legal representation.
Why would the court appoint a guardian for my child?
The court has discretion to appoint a children’s guardian during a court case, in a variety of situations. It is most common for one to be appointed in care cases, where the local authority has made an application to safeguard a child from potential risk of harm posed by their parents.
Outside of this, a guardian maybe considered in cases in private law proceedings when determining who your child will live with and how much time they will spend with their other parent.
You may find yourself in an unfortunate position where there are high levels of conflict with the other parent, due to factors such as domestic abuse during your relationship or personal differences which have led to a complete breakdown in trust. If such problems filter through into the court case about your child, it can very easily obstruct progress being made and can take away from the focus of the case, which is your child’s best interests.
The most common scenario of when a children’s guardian might be appointed by the court, is where one parent says that the child does not want to see the other parent, with the other parent asserting that the child definitely does want to see them and the other parent is forcing their views on the child. In such cases the court may consider that the child needs an independent voice in the proceedings, so that their true wishes and feelings can be heard.
Who is a children’s guardian?
A children’s guardian is an independent professional appointed by the court in family law proceedings where there are significant welfare concerns for a child. They are not representing either parent, nor are they simply an advocate for your child’s wishes (though they do take these into account). Instead, their primary duty is to represent your child’s best interests during the case, independent from what you or their other parent might think is best.
A guardian will normally be a social worker from the Children and Family Court Advisory and Support Service (CAFCASS), an organisation that advises the family courts in cases involving children.
When are they appointed?
When it is obvious that there is a particular complexity in the case, such as very high levels of conflict between you and the other parent, or your child is potentially at risk of harm, a children’s guardian may be appointed at the first court hearing. Otherwise, it may not be until a second or third hearing that the complexities become clear, which is when a guardian may be appointed. Once the order is made for a children’s guardian, you will be notified in writing who it will be and when they will make contact with you and your child.
What does the guardian do?
Typically, the children’s guardian will arrange to spend time with your child and carry out targeted work with them, to help build trust and elicit your child’s true wishes and feelings. They will also speak to both you and the other parent about your concerns and what you want for your child.
The court will ask the guardian to prepare a full report on the situation, giving recommendations as to what they think is in your child’s best interests. Sometimes, the court will ask for interim shorter reports so that both parents are kept up to date with the progress of the work, especially in cases which span several months, or even years.
What does this mean for my child … will they have their own solicitor?
In essence, yes, because your child will be a separate party to the case and so, will require their own legal representation. When the children’s guardian is appointed, they will secure legal representation and work closely with the solicitor for your child. It will be the guardian that provides instructions to your child’s solicitor, based on what they gather from your child during the work they do with them. The solicitor may represent your child at court hearings themselves, or instruct a barrister to do so. There is no additional cost to either parent, as these costs will be covered by legal aid.
If you have your own solicitor, they will liaise with your child’s solicitor on the legal issues, but it is common for the guardian to contact you directly.
What if I disagree with the children’s guardian?
It is quite normal for one parent to hold a different view from that of the children’s guardian about what is best for their child. Sometimes both parents will disagree with certain elements of the recommendations.
If you find yourself in that position, it is important to voice your concerns to your legal team at the earliest opportunity, and not wait until the guardian has provided their final report. This allows time for further work to be done with your child, or to seek other experts to come on board and assess the situation.
Should it be the case that, even after voicing your disagreement and asking for more work to be done with your child, the guardian maintains their views, you can challenge their findings at a final hearing. The court would ask you to provide a statement and evidence supporting your case and a judge would then hear all of the relevant evidence before making a decision.
How we can help
Having a children’s guardian appointed in your case immediately increases the complexity involved. Whether you are already in the midst of a court case but are struggling to understand the role of the guardian, or you think a children’s guardian will soon be appointed for your child, it is of utmost importance that you have specialist legal advice on what it means for you and your child. For further information, please contact Sellina Kauser in the family law team on 01733 882800 or email [email protected].
Sellina Kauser, Senior Associate
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