Update on children’s guardians attending court hearings

A local practice direction relating to the attendance of children’s guardians at court hearings has been revised following a threat of judicial review by Nagalro, the professional association for independent social workers. The direction was issued, and later withdrawn, by the Designated Family Judge at the Central Family Court.

The role of the children’s guardian in care proceedings is to act as the voice of the child. They are social work practitioners, working for an organisation called Cafcass, who are entirely independent of local authority social services. Their role is to ensure that decisions are made in the best interests of the children. They assist the court by scrutinising the local authority’s plan for the children to ensure it is in their best interests.

The guidance stated that the attendance of guardians at hearings would only be required to enable them (i) to give evidence and (ii) to hear evidence of parents or any subject child. If attendance was thought to be required at other times, the permission of the court should be sought and reasons given. Nagalro argued that this guidance was both unlawful and incompatible with the performance of the role of the guardian within the proceedings. In his response, the Designated Family Judge said that the measure had been introduced to make guardian’s lives easier.

It is fair to say that it is not necessary for guardians to attend each and every hearing in care proceedings. They are often represented by a children’s solicitor in the proceedings and there are many examples where their time can be used more effectively by carrying out other duties. It is also fair to say that one could expect that most Judges faced with a request from a guardian to attend a hearing would usually grant it.

The strong feeling against this guidance may well be more about the perception that it undermined, perhaps inadvertently, the role of the guardian. It was issued with seemingly little or no input from guardians themselves or other practitioners in care proceedings. Although the Designated Family Judge expressed disappointment that he had had no warning of the letter sent on behalf of Nagalro. It is regrettable that there did not appear to have been any consultation which may have been a more constructive way in dealing with the fact that guardians resources are stretched.

There are hearings where the attendance of the guardian for discussions with the other parties can be enormously helpful in making progress in the case. There are hearings where their attendance will not add anything, so they do not attend. The point is that guardians, in consultation with their solicitors and the court, can identify these hearings perfectly well and should be trusted to do so. The withdrawal of this guidance should therefore be welcomed.