Acting in the absence of a children's guardian

1. Introduction

1.1 Who should read this practice note?

Solicitors who represent children in public law proceedings.

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1.2 What is the issue?

This practice note clarifies what you should do if a court appoints you to represent children in cases where a guardian is not immediately available, or where there are delays between the order appointing a guardian in specified proceedings and the allocation of a guardian.

This practice note does not apply to situations in which a guardian has been appointed but you have not received instructions from the allocated guardian or where the guardian's physical attendance at court may not be possible.

This practice note replaces Appendix 8 of Good Practice in Child Care Cases and should be read in conjunction with the Public Law Outline and the President's Interim Guidance for England.

This advice has been endorsed by Resolution, the national organisation of family lawyers. See 4.3.5 Resolution for more information.

1.2.1 Tandem Model

The Law Society supports the need for a tandem model of legal representation - a solicitor and a children's guardian. The tandem model provides a balance of welfare and legal support for children that is vital to ensuring that the best interests of the child are clearly articulated in court proceedings.

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2. Appointments to represent children

The appointment by the court of the solicitor for the child is governed by section 41(3) Children Act 1989. The Law Society's document ‘Appointing a solicitor for the child in specified proceedings: guidelines for courts' April 2007 provides guidance on the appointment of the solicitor for the child.

The President's Interim Guidance for England provides that Designated Family Judges may make arrangements for care centres and/or groups of courts to enter into a CAFCASS duty advice scheme for the provision of advice to the court at the first appointment through the solicitor appointed under section 41(3) Children Act 1989. The guidance is intended to cease to have effect on 31st March 2010.

2.1 Accepting an appointment

You may decide whether or not to accept an appointment from the court to act for a child.

In making the decision, you should consider whether you are able and competent to represent that child in accordance with the professional duty to the client.

You should identify the child's best interests and vulnerability issues, including:

• the urgency of the case
• the impact of delay upon the child
• the age and understanding of the child.

You should carefully consider whether you are able to act promptly and personally, and whether you have sufficient experience and the appropriate expertise to deal with the case in the absence of a children's guardian. You may also consider making appropriate professional mentoring arrangements.

You should not refuse to accept instructions to represent a child solely on the basis of the non-availability of a children's guardian. There is likely to be significant work which you can undertake in and outside of court pending the involvement of a children's guardian in order to facilitate the smooth running of the proceedings, to clarify issues and plans and to probe and test evidence.

2.2 Law Society Children Panel Undertaking

Members of the Law Society Children Panel must comply with the panel undertaking in all cases, whether or not a children's guardian is appointed. Continuity and consistency of representation for the child will be particularly important where no child's guardian is involved in the case.

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3 Acting in the absence of a children's guardian

Having accepted an appointment to represent a child in the absence of a guardian you should conduct the proceedings in accordance with the instructions from the child where the child is able to understand the situation and give such instructions.

In default of instructions you should represent the child “in furtherance of the best interests of the child” in view of Section 41 of the Children Act 1989 and Rule 4.12 of the Family Proceedings Rules 1991. What work is necessary will be a matter of your professional judgement in the individual case.

You should not however undertake the guardian's professional role. You must not make welfare decisions and recommendations based on personal feelings. While you should act in accordance with the particular child's best interests, you are not in a position to advise the court what those interests are but you may make the court aware of all the available options, without specific recommendations.

3.1 Preparation

You should carefully read all papers before the first hearing and consider the appropriate resources required to support the case.

3.1.1 Request and collate documents

You should request and collate as soon as possible all relevant papers including:

• copies from the local authority social services' records of all case conference minutes, and
• medical or other reports relating to the child.

The local authority party is likely to agree to provide those key documents which would be disclosed in the ordinary process of discovery.

However, you do not have the statutory right of access to local authority records, which children's guardians have under Section 42 of the Children Act 1989 meaning local authorities are required to comply with data protection legislation. Where necessary you should discuss a consensual way forward with the local authority party.

Given time and financial constraints this step may be difficult to achieve in some cases and you may exercise your professional judgement in deciding whether to collate these documents.

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3.1.2 Consider the evidence of other parties

You should hear the evidence of the local authority and other parties and make submissions on whether they have made their cases on the evidence. You should critically appraise the local authority's actions and evidence in support of those actions, and seek a direction to require the filing of further evidence if appropriate, in order:

• to probe and test their case; and
• to ensure that the court has sufficient evidence on which to base its decisions; and
• to test the evidence of all parties at any contested interim hearing.

You may raise issues for the other parties to consider: you may not recommend a particular course of action.

3.2 Ensuring the child's needs are met

You should be familiar with Good Practice in Child Care Cases (The Law Society 2004 with the Association of Lawyers for Children, the Child Care Law Jo int Liaison Group, and Resolution (formerly SFLA)), the Public Law Outline and the President's Interim Guidance.

You should also become familiar with any duty guardian scheme/protocol which has been duly approved by the Designated Family Judge in accordance with the President's Interim Guidance, and is in operation in the court.

3.2.1 Your suitability

You should continue to self-assess your suitability after accepting a court appointment of this nature.

You should also be alert and sensitive to whether there is a good reason why this particular child may or may not be better represented by someone of a specific gender or ethnic background or culture, or with knowledge, skills or experience relevant to the case.

Practitioners should not continue with cases which are outside their expertise.

3.2.2 Your contact with the child

You should attempt to see the child as soon as possible, if appropriate. You should exercise professional judgement as to whether a visit is appropriate, particularly if the subject is a baby or very young child. It is generally appropriate to meet the child if you are competent to do so, the child would benefit from the visit or the visit would assist the court, unless there is a good reason not to.

Ideally the meeting should take place after you have read the papers and before the first hearing. Meetings should be conducted in an appropriate setting and tone, in order for you to:

• identify family members and other persons who the child regards as significant
• understand the wishes and feelings of the child where it is possible to do so
• ascertain whether the child is able to give her/his own instructions.

You should report to the court any wishes and feelings articulated by the child, and consider seeking directions for discovery and disclosure as necessary, including in relation to previous Children Act proceedings and concurrent criminal proceedings

As appropriate to the child's age and understanding, you should help them to understand the court process, prepare them for court proceedings and explain the outcome of interim court decisions and any appeal.

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3.2.3 Conditions for interim care

You should consider whether it is appropriate to request a transfer to the care centre, based on the information available, and make any application to do so if necessary.

You should consider and provide advice based on evidence, not personal feelings as to whether the interim care plan and arrangements are both:

• safe, and
• suitable for the age and circumstances of the child.

You must not recommend that an Interim Care Order be made but can advise the court as to whether the evidence presented satisfies the test for making an Interim Care Order.

3.2.4 Family contact

You should be aware of any contact issues for children separated from their families. Check whether contact with parents, siblings and other family members is being properly explored and whether the arrangements are appropriate and safe. In doing so you should establish factors such as:

• frequency
• venue
• travel arrangements
• opportunities for care giving
• level of supervision

You should ensure that contact with the father and extended paternal family is being properly explored, even where the father has apparently not played a key role to date.

3.2.5 Tracing family members or other carers

You should ascertain from the local authority any enquiries made in relation to the identity and whereabouts of the father or putative father and paternal grandparents, and the early identification of other family members or people of importance to the child who might offer care and/or with whom the child might want, or benefit from, contact.

You should ensure that all appropriate steps have been taken to trace any such parties and check with parents' representatives that parents have been asked and given information about relevant members of the extended family.

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3.3 Appointment of a children's guardian

You should continue to seek the appointment of a children's guardian by Children and Family Court Advisory and Support Service (CAFCASS). You may make a repeat request if the case becomes more urgent or adequate time has passed.

You should keep the issue of the non-appointment of a children's guardian under constant review. This includes advising the court at the outset. You may do this by informing the clerk of your view on the level of priority for appointment. In formulating this advice you should consider, together with the other parties, whether there are urgent decisions to be made on any of the following issues:

• separation and placement;
• the removal or return of the child including initial risk assessment;
• the separation of siblings;
• contact including sibling contact;
• the need for immediate expert evidence on causation;
• the type of placement.

The matter should be brought back before the court as quickly as possible after the first hearing and continue to be an issue for every hearing until resolved.

3.3.1 Welfare issues

CAFCASS should be kept informed of any changes or issues arising that affect your advice on the level of urgency in relation to allocation of a guardian.

If urgent and specific welfare issues arise which cannot await the allocation of a guardian, and advice from any duty guardian is insufficient to deal with the problem, you should consider applying to the court for leave to consult an expert social worker or other appropriate expert to advise the court on those specific welfare issues.

You should invite the court to record on the face of the order the reasons for the urgency and consider obtaining prior authority from the Legal Services Commission before proceeding with any resulting instruction.

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3.4 Case management and court procedures

You should consider Articles 6 (the right to fair trial) and 8 (the right to respect for family life) of the European Convention on Human Rights (enshrined in domestic law in the Human Rights Act 1998) and ensure that proceedings are conducted with due regard to such rights.

With regards to court procedure you should:

• consider whether a split hearing is necessary;
• consider whether or not to appeal any court adjudication;
• check and become familiar with any duty guardian scheme or protocol which has been duly approved by the Designated Family Judge in accordance with the President's Interim Guidance and is in operation at the court.

You should also be generally aware of, and play a leading role in, case management and time tabling issues to enable smooth running of the proceedings as a whole.

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4 More information

4.1 Professional conduct

The following section of the Solicitors' Code of Conduct 2007 is relevant to this issue:

• Rule 2.01: Taking on clients

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4.2 Legal and other requirements

• Children Act 1989
• Rule 4.12 of the Family Proceedings Rules 1991
• European Convention on Human Rights articles 6 and 8
• Human Rights Act 1998

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4.3 Further products and support

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4.4 Status of this practice note

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

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4.5 Terminology in this practice note

Must - a specific requirement in the Solicitor's Code of Conduct or legislation. You must comply, unless there are specific exemptions or defences provided for in the code of conduct or relevant legislation.

Should - good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.

May - a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.

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