What is a Guardian ad Litem

A guardian is a person who safeguards and/or helps another person, while ´ad litem´ means ´for the proceedings´.

In private family law, Guardians ad Litem represent the interests of children in court proceedings.

A Guardian ad Litem may be:

• A social worker employed by the Children and Family Court Advisory and Support Service (CAFCASS);
• An officer from the National Youth Advocacy Service (NYAS is a charity which provides socio-legal services to children and vulnerable adults);
• The Official Solicitor;
• An individual who has applied to and been given permission by the court to represent the interests of the children in proceedings.

Guardians ad Litem also carry out duties in public family law cases related to care and adoption proceedings.

Rules governing their appointment

The rules governing the Representation of Children in Family proceedings are set out in Section 16 of the Family Procedure Rules.

Family Procedure Rules s.16

You may also wish to read Practice Direction 16A ´Representation of Children´.

Practice Direction 16A

When is a Guardian ad Litem appointed?

Under section 16.2 of the Family Procedure Rules 2010, the court can decide to make a child a party to proceedings if it considers it is in the best interests of the child to do so.

A Guardian ad Litem will be appointed if the court independently decides it is in the interests of the child or:

• A party to the proceedings applies for a guardian to be appointed (and the court consents); or
• Some other person applies to represent the interests of the children (and the court consents).

If some other person applies to act as a guardian, the court may not appoint them unless satisfied that:

1. it is in the best interests of the children; and
2. that that person can fairly and competently conduct proceedings on behalf of the child; and
3. they have no interest adverse to that of the child; and
4. undertakes to pay any costs which the child may be ordered to pay in relation to the proceedings, subject to any right that person may have to be repaid from the assets of the child.

An application for the appointment of a guardian must be supported with evidence.

Where the court decides that a child should be made party to proceedings the court must appoint a guardian ad litem for the children, to represent their interests in court, unless one of the following circumstances apply (set out in section 16.6 of the Family Procedure Rules 2010):

1. The child wishes to represent themselves, and has the court´s permission to do so; or
2. A solicitor -
1. considers that the child is able, having regard to the child’s understanding, to give instructions in relation to the proceedings; and
2. has accepted instructions from that child to act for that child in the proceedings and, if the proceedings have begun, the solicitor is already acting.

Reasons to support the appointment

Section 7 of Practice Direction 16A governing the Representation of Children sets out the circumstances where the court should consider ordering that the child be made a party to proceedings.

"7.1 Making the child a party to the proceedings is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases. Before taking the decision to make the child a party, consideration should be given to whether an alternative route might be preferable, such as asking an officer of the Service or a Welsh family proceedings officer to carry out further work or by making a referral to social services or, possibly, by obtaining expert evidence.

7.2 The decision to make the child a party will always be exclusively that of the court, made in the light of the facts and circumstances of the particular case. The following are offered, solely by way of guidance, as circumstances which may justify the making of such an order -

1. where an officer of the Service or Welsh family proceedings officer has notified the court that in the opinion of that officer the child should be made a party;
2. where the child has a standpoint or interest which is inconsistent with or incapable of being represented by any of the adult parties;
3. where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute;
4. where the views and wishes of the child cannot be adequately met by a report to the court;
5. where an older child is opposing a proposed course of action;
6. where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child;
7. where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court;
8. where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of an officer of the Service or Welsh family proceedings officer;
9. where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position;
10. where there is a contested issue about scientific testing."

There are occasions some courts choose to appoint a guardian so the children are made parties to a case where the prime reason is to allow an expert's report to be prepared with the children´s legal aid, thereby avoiding the cost to the parents.

What does a Guardian ad Litem do?

The Guardian ad Litem will normally meet with the children and parents, and may also wish to speak to other people involved in the children´s lives, such as teachers, relatives, GPs or social services if they have previously been involved with the family.

The Guardian will then report back to the court, and may make recommendations for further investigations, or recommendations as to what type of orders they consider appropriate (albeit the decision on what order to make remains with the court.

Read Practice Direction 16A in its entirety:

PD16a - Representation of Children

Legal representation of children

If a child is made a party to proceedings, a solicitor will normally be appointed for them, to present their case in court. The Guardian will advise on their investigation and what they think should happen.

A Guardian ad Litem should not be confused with a litigation friend (a third party that conducts your case on your behalf).

What happens if the wishes of the child and Guardian conflict?

If the solicitor believes that the child is sufficiently mature to understand the issues, they will inform the court of the conflict, and represent the children´s wishes.

What happens if the parents´ and Guardian´s opinions conflict?

The parents will have the opportunity to challenge the Guardian´s opinion in court. If there is a difference of opinion, we recommend that the parents consider filing a position statement once they have seen the Guardian´ report, which should be provided to them 14 days before a court hearing where their report is to be considered.

We provide a guide to, and a template for a position statement in our shop.

Preparing a Position Statement