Court of Appeal considers duties of legal guardians

News|April 7th 2014

Legal guardians appointed for children involved in court cases should not function as advocates in court, the Court of Appeal has declared.

Guardians represent the interests of children in the family courts and are most often social workers employed by Cafcass. But they may also be representatives of the National Youth Advocacy Service (NYAS), an individual who has been appointed to take on the role or even the Official Solicitor.

In MW and Hertfordshire County Council v A and Others concerned a couple of Polish origin who lived in the UK with their children, who are now aged nearly 10 and seven years of age. The children were raised in a bilingual house. The relationship broke down and the father was arrested and given a life sentence last year for murdering the mother.

At a subsequent hearing before Watford County Court, a judge ruled that the two children should go and live with their maternal aunt and uncle in Poland.

Both Hertfordshire County Council and the children’s imprisoned father appealed against the order. The children’s guardian supported the local authority’s appeal. At the Court of Appeal, Lady Justice Macur noted:

“The father seeks to maintain a relationship with his children and has expressed a desire to have direct contact with them. This is not realistically or reasonably achievable in the short term, if at all, but obviously will be rendered extremely unlikely in the event of the children’s removal from the jurisdiction.

The local authority seeks to maintain the children with their present long term foster carers who have recently and tentatively indicated a wish to be considered as their special guardians. The children’s guardian agrees with the local authority’s care plan. The local authority do not support the children having direct contact with the father at this time, neither does the children’s guardian.”

The maternal aunt and uncle took leave from the job and travelled to England for the appeal. At the earlier hearing they had not been represented but now instructed solicitors, paying them privately.

Lady Justice Macur ruled in their favour, dismissing the appeal. She said:

“The appellants are unable to satisfy me that the judge was wrong in his conclusions as to outcome. There is no merit in any one of the grounds of appeal as drafted…”

She continued:

“I would therefore affirm the judgment of the lower court but vary the order so as to make the children subject to interim care orders, the case to be listed …and in any event prior to 8 April, 2014 to oversee transfer of physical care of the children…the judgment at first instance is plausibly reasoned and, read as a whole, withstands all criticism.”

Turning to the role of the guardian, Lady Justice Macur said there had been “patent misunderstandings as their standing and status within the proceedings”.

She explained:

“The children’s guardian is not a “neutral” party or participant. When appointed under the Family Procedure Rules (“FPR”) 16.3, as here, the children’s guardian has a duty to safeguard the interests of the child and to present an independent view of the best interests of the child. … Whilst FPR16.20 (2) requires the children’s guardian “must also provide the court with such other assistance as it may require”, quite clearly a court should never request assistance which renders the children’s guardian or their legal representative effectively engaging in advocacy on behalf of a party or witness whose position creates an actual or perceived conflict of interest with that of the child.”

The judge also addressed the issue of unrepresented litigants in person, as the aunt and uncle had been during the earlier hearing.

“The judge’s role in such a case is precarious, he must remain the adjudicator of fact and law and avoid descending into the arena but nevertheless ensure that all reasonable assistance is afforded to the non represented ‘party’ in putting their case. It is unrealistic to require advocates representing other parties who oppose the non represented litigant’s application to assist in promoting it, whether by positive action in the framing of questions to be asked of other parties or a reticence to challenge the contrary evidence. In any event… the inevitable perception of unfairness that an ultimately unsuccessful litigant in person would hold needs no amplification.”

She added:

“An advocate’s professional code will require that they do not seek to gain unfair advantage on behalf of their clients by virtue of the unrepresented status of another.”

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