Separate Representation of Children and Their Interests

New clause 10 – in the House of Commons at 6:45 pm on 17th June 1996.

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—(1) The court may, in the exercise of its powers under section (Welfare of Children), appoint a guardian ad litem for a child if—

  1. (a) it appears to the court on the evidence before it, that it may be appropriate for an order to be made under section 8 of the Children Act 1989; or
  2. (b) there are existing proceedings in any court in England and Wales under section 8 of the Children Act 1989 in relation to any child of the family in question.

(2) The guardian ad litem shall—

  1. (a) be appointed in accordance with rules of court;
  2. (b) be under a duty to safeguard the interests of the child in the manner prescribed by such rules; and
  3. (c) be appointed from a panel established under section 41(7) of the Children Act 1989.'.—[Mr. Llwydd]

Brought up, and read the First time.

Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons)

I beg to move, That the clause be read a Second time.

Photo of Miss Janet Fookes Miss Janet Fookes , Plymouth Drake

With this, it will be convenient to discuss the following: New clause 14—Provision for separate representation for children (No. 3)——(1) The Lord Chancellor may by regulations provide for the separate representation of children in proceedings in England and Wales which relate to any matter in respect of which a question has arisen, or may arise, under—

  1. (a) Part II;
  2. (b) Part IV;
  3. (c) the 1973 Act; or
  4. (d) the Domestic Proceedings and Magistrates' Courts Act 1978.
(2) The regulations may provide for such representation only in specified circumstances.'. Amendment No. 106, in clause 24, page 16, line 8, leave out 'and' and insert— '(6B) Where there are one or more children of the family, the code must also require the mediator to have arrangements designed to ensure that the parties are encouraged to consider:
  1. (a) the welfare, wishes and feelings of each child; and
  2. (b) whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation.
(6C) A contract entered into by the Board for the provision of mediation under this Part must also include.'.

Photo of Miss Janet Fookes Miss Janet Fookes , Plymouth Drake

Order. It is not fair to the hon. Member who has the Floor if there is a constant buzz of conversation.

Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons)

New clause 10 seeks to give the court the power to provide for the separate representation of children and their interests in circumstances when it would appear to the court, on the evidence before it, that the interests of a child may be in conflict with those of either or both parents—[Interruption.]

Photo of Miss Janet Fookes Miss Janet Fookes , Plymouth Drake

Order. I am sorry to interrupt the hon. Member again, but it is clear that my earlier words were either not heard or not heeded. I should like silence, other than from the hon. Member who has the Floor.

Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons)

Thank you, Madam Deputy Speaker, I shall try again.

New clause 10 seeks to give the court the power to provide for the separate representation of children and their interests in circumstances when it would be appear to the court, on the evidence before it, that the interests of a child may be in conflict with those of either or both parents and that such a conflict presents a potential risk to the welfare of the child.

It is clear that in public law there are considerable benefits of separate representation. Under the Bill as drafted, clause 9 addresses the responsibility of the court to satisfy itself as to the arrangements for children under section 41 of the Matrimonial Causes Act 1973. The new clause would provide a bridge between the statement of arrangements for the children and the ability to appoint a guardian to represent their interests. It would cover many circumstances that are not at present covered by section 37 of the Children Act 1989, which allows for the appointment of a guardian only when the court is considering making a public law care or supervision order.

A considerable body of professional opinion—including judges, solicitors, family court welfare officers, guardians and child care social workers—fully supports the view that the lack of availability of a guardian ad litem in proceedings under section 8 of the Children Act 1989 represents a considerable void in the law relating to children who are involved in private law proceedings.

The Children Act advisory committee recommended the extension of the role of the guardian to cover proceedings under section 8 of the Children Act 1989. Indeed, judges have tried to appoint guardians when it is technically incorrect to do so, and many recent examples are available. There is also ample evidence that increasing numbers of children—particularly teenagers—need independent representation, although it is not appropriate to pursue the possibility of a care or supervision order for them. Many require help in protecting their financial, educational and emotional interests.

The new clause would facilitate agreements by diverting proceedings away from the court. It would give the court an independent view of the child's circumstances on which to base decisions about his or her welfare. It would extend the number of specified proceedings in which a guardian ad litem may be appointed, and it would provide a safety net for a relatively small but nevertheless important and vulnerable group of children.

The new clause would constitute a logical extension of the philosophy and principles laid down in the Children Act and would be entirely consistent with the requirements of article 12 of the United Nations convention on the rights of the child, to which the Government are a signatory. During the passage of the Children Act in January 1989, the Government gave a commitment that the review of the arrangements for separate representation of children would be part of the Lord Chancellor's rolling programme of reform of family jurisdiction. The Lord Chancellor gave an undertaking that the arrangements for panels of guardians ad litem and reporting officers would be reviewed in the light of experience, and the debate made it clear that it would be possible to review arrangements for the independent representation of children in all family proceedings.

Of course, my proposal would have a cost implication, but I am sure that it would be relatively modest and not too far reaching. It would introduce a vital provision for vulnerable children and young people who would not otherwise be properly represented, as it would give the court power to make such an order and it would provide for separate representation.

Although section 37 of the Children Act is a potential bridge between private and public law proceedings, it allows for the appointment of a guardian only if it appears to the court that it may be necessary for a care or supervision order to be made in respect of the child. Under the new clause, the court would have the power to do so without that proviso and it is entirely appropriate that it should be extended in that important way.

Experience since the implementation of the Children Act has shown that there are many circumstances in which courts have considered it necessary to appoint guardians in private law proceedings, but have found themselves hamstrung and unable to do so. Judges have gone as far as to try to appoint guardians when it was technically inappropriate.

Recent research by the Children's Society on the separate representation of children in private law proceedings found that the majority of respondents, including judges, felt that there was a conflict of interest between the child and his or her parents. So it is quite obvious that there is a void to be filled.

I fully support the amendment grouped with the new clause, and I should be happy if either was accepted. I commend the new clause to the House.

Photo of Mr Paul Boateng Mr Paul Boateng Shadow Minister (Business, Innovation and Skills), Shadow Minister (Lord Chancellor's Department)

New clause 10 is a worthwhile amendment, which certainly follows on from our debates in Committee. The impact of divorce on children obviously gives rise to considerable concern. Experience shows clearly that the child's interest is best served when there is an opportunity to focus on his or her needs and for an interventionist role to be played, to ensure that that interest is secured. The new clause seeks to build on the guardian ad litem system and as such has much to commend it.

The resource implications are also worthy of consideration. One issue that the Government need to examine, both in relation to new clause 10 and generally in terms of the way in which resources are raised and applied, is whether there is scope in the system of court fees and payments for the raising of revenue to be applied specifically to that purpose. So the resource implications are modest and there is no reason why they cannot be met from the existing budget and through the capacity of the courts to meet such expenditure.

Experience has shown that the use of guardian ad litem in proceedings where children have an interest, by identifying the issues and seeking to ascertain where intervention by the various agencies can be most usefully applied, contributes to the harnessing and saving of resources.

So on balance, the new clause has a great deal to commend it. We look forward to the Minister's response. If it is not possible to take the matter forward in respect of the Bill, I hope that we shall be able to return to it in other contexts and generally—building on the other amendments and new clauses set down for discussion this evening—to make sure that the special needs and requirements of children are met and respected.

Photo of Gary Streeter Gary Streeter Parliamentary Secretary (Lord Chancellor's Department), Assistant Whip (Law Officers) 7:30 pm, 17th June 1996

I should like to express my gratitude to the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) for his tireless efforts on behalf of children's organisations. Throughout the Bill's stages, he has spoken thoughtfully and argued persuasively on this vital area, which I know concerns hon. Members on both sides of the House. He has contributed to some significant changes in the Bill—all of which strengthen it—in order to assist the innocent victims of divorce: children.

I should also like to pay tribute to the children's organisations, which have conducted a worthy campaign for the interests of children to be taken into account in the Bill. While we may not always have been able to agree the details of changes, there has been nothing between us on the principles behind them.

The Government believe that the voice of the child should be heard in proceedings regarding his or her welfare. There are already a number of ways in which that is provided for. The voice of the child can be heard through the report of a welfare officer under the Children Act 1989 and through the offices of the official solicitor in private law proceedings in the High and county court, and, under section 10(8) of the Children Act 1989, a child may bring his or her own application, be represented and apply for legal aid for such representation.

Expanding the guardian ad litem service in the way proposed by the hon. Gentleman's new clause, however, would duplicate the work of the family court welfare service, which provides welfare reports to the court in private law proceedings and which may be asked to ascertain and represent to the court the views of the child. Expanding the guardian ad litem service in that way would also require additional resources, as well as duplicating existing ones.

New clause 14, tabled by the official Opposition, which proposes a rule-making power to allow for change, is preferable to new clause 10, because the latter applies only to the court's consideration of the arrangements for the children, and would thus not extend to matters such as domestic violence, separation or divorce proceedings. Nor does it allow for any control of the procedure. For example, it does not express a specific intention on the type of cases in which such an appointment would be appropriate, and would allow for the appointment of both a guardian ad litem and a court welfare officer, who may be performing a similar function.

New clause 10 enables a court to appoint a guardian ad litem if it decides in the course of exercising its power under section 41 of the Matrimonial Causes Act 1973 that it may need to exercise its powers under the Children Act or if there are already proceedings under the Children Act pending in relation to any child of the family. However, it provides for the guardian to be appointed by the court only in exercise of its powers under that new clause—which puts section 41 of the Matrimonial Causes Act in the Bill—and not in exercise of its powers under the Children Act. The court already has the ability to request a welfare report. New clause 10 does not specify whether that or the appointment of a guardian is to be preferred, and there might be duplication if a court welfare officer has already been appointed to report in the pending proceedings.

The Government would also wish to consult the children's organisations and those who currently represent the interests of children in court proceedings, in devising an effective system. That approach would be consistent with new clause 14.

Amendment No. 106 ties in with a number of amendments made to clause 24, which will be considered later. It proposes that the code of practice required for a contract with the Legal Aid Board, which is introduced by later amendments, should stipulate that mediators have in place arrangements designed to ensure that the parties are encouraged to consider whether their children should have an opportunity to speak up during mediation to express their own wishes and feelings. The Government are happy to support the amendment.

Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons)

In view of that assurance and the very thoughtful and precise way in which the Minister responded, and as the Government prefer new clause 14, I shall not be boorish and seek to divide the House. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.