Separate Representation of Children and Their Interests

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

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Photo of Elfyn Llwyd Elfyn Llwyd Opposition Whip (Commons) 6:45 pm, 17th June 1996

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.