There are however some complex cases which are between parents where the court will appoint a solicitor to represent the child. These cases are quite rare. When this happens the Cafcass officer is appointed as Children’s Guardian. The Guardian Might Be Referred to As a Rule 16.4 Guardian – referring to the particular section of the Family Procedure Rules which sets out the circumstances in which the court should appoint a children’s Guardian in private law proceedings. (Social services cases are referred to as public law proceedings because they involve a public authority).
The rules are:
Making the child a party to the proceedings is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases. Before taking the decision to make the child a party, consideration should be given to whether an alternative route might be preferable, such as asking (the Cafcass) officer to carry out further work or by making a referral to social services or, possibly, by obtaining expert evidence.
The decision to make the child a party will always be exclusively that of the court, made in the light of the facts and circumstances of the particular case. The following are offered, solely by way of guidance, as circumstances which may justify the making of such an order –
(a) where a (Cafcass) officer has notified the court that in the opinion of that officer the child should be made a party;
(b) where the child has a standpoint or interest which is inconsistent with or incapable of being represented by any of the adult parties;
(c) where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute;
(d) where the views and wishes of the child cannot be adequately met by a report to the court;
(e) where an older child is opposing a proposed course of action;
(f) where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child;
(g) where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court;
(h) where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of a (Cafcass) officer.
(i) where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position;
(j) where there is a contested issue about scientific testing.
It must be recognised that separate representation of the child may result in a delay in the resolution of the proceedings. When deciding whether to direct that a child be made a party, the court will take into account the risk of delay or other facts adverse to the welfare of the child. The court’s primary consideration will be the best interests of the child.
So, in a nutshell – it’s up to the court – but the case must be complicated.
Following the legal aid restrictions brought in several years ago there are increasing numbers of parents who bring court proceedings about their children, but are unable to benefit from legal aid representation. As a consequence they have to conduct the case themselves. Because of this there are more cases where the court is appointing a solicitor to represent the child. This can sometimes be the only way of the court obtaining expert evidence necessary for the court to resolve the case.
The solicitor appointed to represent the child will normally be a member of the Law Society’s Child Law accreditation scheme/children panel. We have a very strong child law team which includes several accredited panel members. We regularly represent the children in the circumstances.