The benefits of appointing a children’s guardian

12th July 2021

Sometimes in children law proceedings, the Court may consider ‘joining’ a child to the proceedings and appointing a guardian to put forward their wishes and feelings. This can be a helpful tool when the Court is concerned that the child’s point of view is being lost in the proceedings. The recent case of Re M (Children) (Abduction: Joinder of Children) [2021] EWHC 635 (Fam) explored this.

Appointment of a children's guardian

The appointment of a children’s guardian gives the child a voice so that their own views can be heard by the Court. It will only be appropriate in cases where it is necessary for the child’s point of view to be put forward for their best interests to be safeguarded. A children’s guardian would usually be appointed if the Court considers that in the course of the proceedings, the parents are not appropriately safeguarding the best interests of the child.

The appointment may also be appropriate where the proceedings have become significantly difficult. Practice Direction 16A of the Family Procedure Rules 2010 gives guidance about circumstances in which it might be appropriate to join a child into proceedings. In many cases the Court will join the child to the proceedings following a Children and Family Court Advisory and Support Service (Cafcass) recommendation or an application by one of the adult parties but, as was the case in Re M, it is also possible for a child to apply to Court to be joined to the proceedings.

The facts in Re M

The case concerned two children aged 15 and 14 and their two younger siblings. All four children had been wrongfully retained by their mother in 2020 and their father sought their return to Canada. A report was prepared by a Cafcass officer stating that the children did not object to returning to Canada if they lived with their mother.

The two elder children applied to be joined to the proceedings on the basis that they had very strong objections to returning to Canada and these had not been appropriately identified by the Cafcass officer. The Court decided that joining the two elder children to the proceedings would be in their best interests. It was held that they were mature, articulate teenagers who wished to communicate their strong views to the Court and it would not be appropriate to deny them the opportunity to do so.

The role of the children's guardian

The children’s guardian’s role is to represent the wishes and feelings of the child and they must always act in the child’s best interests. The guardian will appoint a solicitor to represent the child. The solicitor instructed will take their instructions from the children’s guardian, unless the solicitor assesses the child to be competent to give instructions regarding the conduct of their case. While there would usually be a guardian and a solicitor, in Re M the elder children’s solicitor was also appointed as their guardian. In that case, the solicitor ran the children’s case and was given responsibility to take all steps and decisions for the children’s benefit.

The appointment of a children’s guardian can be valuable in cases where there are mature children with strong views about the outcome and its impact on them. If you require assistance regarding joining a child to children law proceedings, or the appointment of a children’s guardian in a children law case, contact a member of the Family Law Team at Blake Morgan for more information.

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