The Court of Appeal has considered the responsibilities of judge, advocates and children’s guardian in cases where one of the parties is representing themselves. Zimran Samuel, who acted for the maternal uncle and aunt in this case, explains below what important reminders advocates and family solicitors can take from it.
In the case of MW and Hertfordshire County Council v A and Others  EWCA Civ 405, the children’s mother was murdered and the children placed in foster care. The local authority clearly failed to give proper consideration to placing the children with relatives who could offer them a safe and loving home in Poland. The local authority had initially stated it would place the children in the interim within a Polish family (or alternatively offer them Polish language lessons) but, after failing to do that, later relied on its omission as a reason to place the children permanently outside the family. The trial judge ruled that the maternal family in Poland could offer a good home to the children and the children should be placed there under Special Guardianship Orders. The local authority appealed.
Why is it important?
The judgment of Lady Justice Macur serves as an important reminder of the duty on local authorities to give proper consideration and assistance to wider family members when parents cannot care for their children. In addition to the failures in that process within this case, the maternal aunt and uncle did not have representation at the main hearing before the county court. They did not have public funding and the local authority chose not to provide them with a lawyer. Lady Justice Macur’s judgment underlines that there are now an increasing numbers of people representing themselves before our courts. In dealing with such litigants, we have a duty as lawyers to play fair; we should never seek to gain any unfair advantage by virtue of the unrepresented status of another party.
The judges’ role in such cases is precarious - they 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, quite apart from possible subconscious taint of process, the inevitable perception of unfairness that an ultimately unsuccessful litigant in person would hold needs no amplification.
The Court of Appeal also quashed any lingering notion that the children’s guardian’s exercise of duties in the advice tendered to the court - service of documentation and inspection of records in accordance with practice direction 16A, 6.5 to 6.10 establishes them as an advocate to the court.
How does this fit into existing law and practice?
Practitioners in care cases often speak of the children’s guardian as a more neutral party than possibly the local authority or parents, who are frequently regarded as occupying more adversarial roles. However, the Court of Appeal was clear that advocates should not consider guardians in such a manner. The court was clear that:
'A 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. Practice direction 16A 6.2 requires the children’s guardian to appoint a solicitor and instruct the solicitor on "all matters relevant to the interests of the child arising in the course of the proceedings" unless the child, being of sufficient understanding, instructs a solicitor on their own behalf. FPR 16.29 specifically provides that a solicitor appointed by the children’s guardian must act in accordance with their instructions unless in conflict with the child’s instructions, if that child has sufficient understanding to give instructions on their own behalf, or in the absence of either in furtherance of the best interests of the child. Whilst FPR 16.20(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 decision is also relevant to the issue of costs. The Court of Appeal was of the view that the appeal had no merit. The court took the unusual step of awarding costs, though these are far from routinely awarded in care matters. The judgment is a reminder to anyone proposing to bring an appeal that they must consider the merits of their proposed grounds as carefully as possible.
What, if anything, should I be doing differently as a result?
1. Practitioners should avoid referring to or thinking of guardians as occupying an elevated or neutral status.
2. There will be more and more litigants in person before the courts. Practitioners were reminded that their code of conduct requires them to have an overriding duty to the court and they should never seek to gain any unfair advantage by virtue of the unrepresented status of another party.
3. Practitioners should be reminded of the possibility of costs orders where meritless appeals are proposed. The grant of permission does not provide a shield against an application for costs against a victorious respondent or appellant.
About the author - Zimran Samuel
Zimran Samuel is a barrister at 42 Bedford Row.