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Sir James Munby calls for review of the guardian

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In ‘View from the President’s Chambers’, Sir James Munby cast his gaze over the role of the children’s guardian within family proceedings.

In the family court, where all parties should be adopting a child focused approach, and particularly in care proceedings where the child is the subject of the proceedings, the need for representation of the child was described by Sir Munby as ‘fundamental to a fair and just system’ and their appointment ensures that the wishes and feelings of the children are identified and represented. In care cases, the child will be represented from the start to the end of proceedings, giving them a voice throughout, separate from the local authority and any other parties.

Despite Sir Munby’s high regard for the current system, in this article he indicated that this setup may be subject to a review in the future.

Sir James Munby’s proposed review of the guardian’s role will look into whether their presence during the care proceedings can, or should be, reduced. It appears that the review will not look at the guardian’s role in proceedings alone, but also that of the child’s solicitor and any counsel who may be instructed. The review will need to look at the necessity of having each and all of the above present at each point of the hearing, and if any reduction in their role would prevent the court from dealing with the proceedings justly. The first stage of this will be the collection of data from 12 courts before exploring how any reformed model could work in practise.

The professional’s employed as guardians have a background within social work and extensive knowledge in the mechanics of care proceedings. Care proceedings are highly emotive and stressful for adults and children involved. At the time a case is brought in front of a judge, the Local Authority professionals would have had significant involvement with the family and having the guardian brought in at the start of the case provides a fresh and child-focused perspective. Their continued presence throughout ensures that a child’s wishes and feelings continue to have a place in the court room, even when the children themselves cannot be in attendance. 

The review of the current system is likely to take some time, with both stages of the review requiring much effort and consideration. Whichever decision is made, the final outcome should ensure children continue to be justly and fairly represented in legal proceedings.

By Joanna Souter, graduate paralegal in the family law team.