How can a child’s voice be heard when a Local Authority issues care proceeding? Child Law specialist solicitor, Fiona Beesley investigates how it is ensured during the legal process.
Representation in Care Proceedings
In Care Proceedings all parties have representation and that includes children who are the subject of the proceedings.
The Court appoints a Children’s Guardian (CAFCASS – Children and Family Court Advisory Officer), who is independent to the Local Authority and the court, to represent the interests of a child/children in care proceedings. A solicitor is also instructed by the Guardian to represent the child/children in court through their Guardian. In some cases, if the solicitor is satisfied that a child is deemed to have sufficient understanding and emotional maturity, they can take instructions directly from the child client.
The Welfare Checklist
Section 1 of the Children Act states that the welfare of the child is the paramount consideration of the court. Also, the court when looking at what is best for a child must consider the welfare checklist:
- The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding),
- their physical, emotional and educational needs,
- the likely effect on them of any change in their circumstances,
- their age, sex, background and any characteristics of theirs that the court considers relevant,
- any harm which they have suffered or are at risk of suffering,
- how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs, and
- the range of powers available to the court under this Act in the proceedings in question.
What is the role of the Guardian in Care Proceedings?
The Guardian’s role is to review the Local Authority’s plan and ensure that decisions are made that protect a child, as well as promote their welfare, and are in their best interests. This will include making sure the children can live with their own family members or people connected to them or be reunited with their parent/s if this can be made safe enough and is in their long-term best interests.
The Guardian will make their own independent enquiries which will include, as far as they are able, talking to the child about what they think and how they feel about the situation. Usually, these wishes are relayed to the court and the other parties through the Guardian’s report, setting out what they think is best for the child.
Although the Guardian will tell the court what the child’s stated wishes are, the Guardian’s recommendations as to what would be best for the child may be different to what the child has expressed. Sometimes the Judge will meet with the child in accordance with approved Guidance. The Judge is not permitted to take evidence from the child. A meeting with a Judge is more of an opportunity for the child to understand and feel they are taking part in the process and to ensure Judges have understood their wishes and feelings.
The Children’s Guardian and solicitor work in tandem, each providing their own skill and expertise to ensure the best possible results for a child.
What to do if you find yourself facing Care Proceedings?
At Hatch Brenner LLP we have an expert team of solicitors who specialise in dealing with care proceedings and also have the additional expertise of solicitors who have Children Law Accreditation from the Law Society and can represent children on the instruction of a Legal Aid Agency.