Termination of the appointment of a Children’s Guardian 

LR v A Local Authority & Ors (Application to Terminate Appointment of Guardian) [2019] EWFC 49 (01 March 2019) https://www.bailii.org/ew/cases/EWFC/HCJ/2019/49.htm

This decision concerned an application for the court to terminate the appointment of a Children’s Guardian. The application was granted. The Children’s Guardian’s duties are defined by the Children Act 1989. This Judgement serves as a useful reminder that the Children’s Guardian is accountable to the court for the work he or she does in any individual case.

Mrs Justice Thesis discussion and decision includes the following paragraphs :

37.It is perhaps important when considering what the court’s decision should be in this case to look at the obligations imposed on those who represent a child in certain specified proceedings, as these are (s 41 (6) Children Act 1989). The guardian is required to safeguard the interests of the child in the manner prescribed by the rules under s.41(2)(b). The relevant rules are set out in Practice Direction 16A Part 3 entitled “Children’s Guardian Appointed under Rule 16.3”, with a subheading, “How the children’s guardian exercises duties – investigations and appointment of solicitor”. At para.6.1 provides as follows:

“The children’s guardian must make such investigations as are necessary to carry out the children’s guardian’s duties and must, in particular: (a) contact or seek to interview such persons as the children’s guardian thinks appropriate or as the court directs; and (b) obtain such professional assistance as is available which the children’s guardian thinks appropriate or which the court directs be obtained.”

It then goes on to set out the obligations on the guardian with respect to the appointment of a solicitor are as set out under s.41(2)(b):

“…to safeguard the interests of the child.”

The rules provide the wide discretion for the guardian to make such investigation as is necessary to carry out those duties and, in particular, contact or seek to interview such persons as the guardian thinks appropriate, or – and I emphasise the or – as the court directs.

38. It goes without saying these are important obligations that require active investigation and assessment by the guardian before conducting a B-S analysis and reaching a conclusion as to what is recommended to the court. These proceedings concern an application by the State to remove children from the care of their birth parents. The Article 6 and 8 rights of the adults and children are engaged and require the court to undertake a careful balancing exercise in determining what order should be made. That can only be done having considered all the evidence, including, importantly, the views on behalf of the guardian who is tasked by the primary legislation to safeguard the interests of the child in the manner prescribed by such rules in the way I have set out. The child is a party to the proceedings for a reason; so, their position can be properly protected and, in appropriate circumstances, seek directions from the court and make applications, for example, an application for an expert under Part 25 FPR 2010. It is not a passive role, just receiving requests or directions from others. The need for the guardian to undertake a proactive role in appropriate cases is wholly in accordance with the rules and their obligation to ‘safeguard the interest of the child’.

39. I accept an application to discharge a guardian is unusual and should only be granted in exceptional circumstances following careful consideration by the court. No party suggests LR’s application is made other than in good faith. Having considered the submissions I have reached the conclusion that this application should be granted…..

The Judge’s decision and her guidance about the duties of the guardian in this Judgement make essential reading for public law children practitioners. _._,___

Deborah Piccos

Vice Chair SAHCA

Consultant Solicitor Advocate at TV Edwards LLP

September 2019