In most disputes about children that require resolution by a Judge, the child in question will not play an active part in the court process. Instead, his or her voice will be heard indirectly. The court will be informed about what the child wants, and why, through a report from somebody with social work qualifications and experience who has met and spoken with him or her (usually somebody from CAFCASS or the social services team of the childs local authority).
This is because a court, when considering making an order that will affect a child, is required to have regard to his or her ascertainable wishes and feelings, considered in light of age and understanding. This is one of the factors that feature on the welfare checklist. Unsurprisingly, the older the child, the more seriously his or her opinions and views will be taken. Generally, the views of a child over ten might carry considerable weight, a child between 6 and 10 less weight, and a child under 6 is unlikely to have opinions that are really capable of being distinguished from those of his or her main carer.
But there are cases where a report on a childs wishes and feelings is not enough. The childs interests will require him or her to play a more active part in the court proceedings, with his or her own legal advisers. The child may have to become a party to the proceedings alongside the adults. Cases where this is appropriate are uncommon, but by no means rare.
Making the child a party to the proceedings is a step that will be taken only in cases which involve issues of significant difficulty. The decision to make the child a party will always be that of the court. Representation of the child may result in a delay in the resolution of the dispute. When deciding whether to make the child a party to proceedings, a Judge must take into account that risk of delay, amongst all other relevant factors. The court’s primary consideration will be the best interests of the child.
Some situations where a court might think it is appropriate to join the child as a party to the court proceedings include:
The general rule is that a child joined as a party to proceedings is represented through a Guardian. Unhelpfully, the same label is used for person who assumes responsibility for, and has PR for, a child on the death of his or her parents. However, the two roles are very different.
In this context, a Guardian is usually a professionally qualified social worker with experience of working with children and families. However, the court can authorise another suitable professional to act as the Guardian. The Guardians role is to represent the wishes and best interests of the child. A Guardian must instruct a specialist childrens solicitor to advise on legal issues that arise, to prepare the case and to argue the childs case before the Judge. This is known as the tandem model of representation.
There is an exception to this general rule. A child joined as a party to proceedings can be involved without a Guardian (so, with a solicitor only) provided that:
In either case, the key question is whether the child, having regard to his or her understanding, is able to give instruction without requiring the Guardian to act as an intermediary.
A relatively recent development in proceedings about children is for the Judge dealing with the case to meet and to speak with the child first hand. Judges are increasingly more receptive, in our experience, to having such meetings. These are not a substitute to the representation of the child, but rather are an opportunity to: