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:
Guardians ad Litem also carry out duties in public family law cases related to care and adoption proceedings.
The rules governing the Representation of Children in Family proceedings are set out in Section 16 of the Family Procedure Rules.
You may also wish to read Practice Direction 16A ´Representation of Children´.
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:
If some other person applies to act as a guardian, the court may not appoint them unless satisfied that:
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):
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 -
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.
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:
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).
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.
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.
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Michael Robinson © 2014
Family law information for parents whose children are resident in England and Wales
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