When private law family proceedings and disputes between parents and their children become complicated, it can be necessary for the court to seek additional direction from a Guardian to help it make a determination in the children’s best interests. The court will always try to promote compromise where possible and it takes the view that in most scenarios, the parents are best placed to agree a solution between them.
What if agreement cannot be reached?
If agreement cannot be reached and if the dispute is in relation to the children’s welfare then the court will often direct a report by the Children and Family Court Advisory Support Service (CAFCASS). In some cases, however, a more detailed independent analysis and investigation can be required, and below are some examples of those more tricky and complicated situations:
A difficult case might include:
- allegations of harm suffered by the children,
- involvement of agencies such as the local authority and police information,
- safeguarding concerns or
- perhaps experts are involved for psychological opinions.
In the main, in our experience, the parents try to act in the best interests of the children. Sadly, however, there are times when it’s just not possible for parties to come to an agreement about what should happen, if and how children should spend time with their non-resident parent. Disputes can become prolonged and the competing positions of parties can sometimes become very difficult to resolve. Positions can become entrenched, even without each party realising, and it can be difficult to then find a way forward for the benefit of the children.
Who are guardians under 16.4 of the Family Procedure Rules
When cases become this complex, the judge can often make a direction under Rule 16.4 of the Family Procedure Rules 2010, to make the children party to the proceedings. When this happens, a Guardian is appointed for the children to give the court an independent view of what has been happening. Guardians are professionally qualified social workers with considerable experience of working with children and families. They do not work for the local authority which might be involved in your case.
The Guardian will also instruct a solicitor to represent the children. The solicitor is responsible for presenting the child’s case in court, including calling witnesses for the child. The Guardian is responsible for telling the solicitor what the Guardian thinks should happen with the child and what information should be put before the court.
What does a guardian do?
The Guardian and solicitor will then usually meet with the people involved, study the case files and write a report with their views and recommendations. This may include a section from the children themselves if that is appropriate. This is to help inform the court what further steps may need to be taken to move the case forward and liaise with the parents or their representatives.
Funding children representation
Legal aid would be granted to children in these types of case in almost all circumstances, and this would fund the children’s representation.
Ed Bidder is part of a team of specialists in dealing with cases concerning children, involving CAFCASS. Not only do we have vast experience of acting for parents, but we also regularly represent children on instructions from CAFCASS where a Guardian may be appointed. If you believe that we may be able to help, please do get in touch with us.