Is separate representation for a child neccessary?
Butler-Schloss gave some advice on when this is appropriate under FPR 9.5 (without prejudice to rule 2.57)...
Pursuant to rule 9.5 of the Family Proceedings Rules 1991 April 2004
The proper conduct and disposal of proceedings concerning a child which are not specified proceedings within the meaning of section 41 of the Children Act 1989 may require the child to be made a party. Rule 9.5 of the Family Proceedings Rules 1991 ("FPR)" provides for the appointment of a guardian ad litem ("a guardian") for a child party unless the child is of sufficient understanding and can participate as a party in the proceedings without a guardian, as permitted by FPR rule 9.2A.
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 Children and Family Court Advisory and Support Service ("CAFCASS)" to carry out further work or by making a referral to social services or possibly, by obtaining expert evidence.
The decision to make the child a party will always be exclusively
that of the judge, 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 an order:-
3.1 Where a CAFCASS officer has notified the court that in his
opinion the child should be made
a party (see FPR rule 4.11B(6)).
3.2 Where the child has a standpoint or interests which are
inconsistent with or incapable of being represented by any of the
3.3 Where there is an intractable dispute over residence or contact,
ncluding 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.
3.4 Where the views and wishes of the child cannot be adequately met
by a report to the court.
3.5 Where an older child is opposing a proposed course of action.
3.6 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.
3.7 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.
3.8 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 a CAFCASS
3.9 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.
3.10 Where there is a contested issue about blood testing.
It must be recognised that separate representation of the child may
result in a delay in the resolution of the proceedings. When
deciding whether to direct that a child be made a party, the court
will take into account the risk of delay or other facts adverse to
the welfare of the child. The court's primary consideration will
the best interests of the child.
When a child is made a party and a guardian is to be appointed:
5.1 Consideration should first be given to appointing an officer of
CAFCASS as guardian. Before appointing an officer, the court will
cause preliminary enquiries to be made of CAFCASS. For the
procedure, reference should be made to the practice note issued by
CAFCASS, contemporaneously with this direction.
5.2 If CAFCASS is unable to provide a guardian without delay, or if
for some other reason the appointment of a CAFCASS officer is not
appropriate, FPR rule 9.5(1) makes further provision for the
appointment of a guardian.
In cases proceeding in a county court, the court may, at the same
time as deciding whether to join a child as a party, consider
whether the nature of the case or the complexity or importance of
the issues require transfer of the case to the High Court.
Issued with the concurrence and approval of the Lord Chancellor. B-S