Public Law Update: Role of Guardian at Fact Finding Hearing. Attendance/Participation. Yes or No?

Children – Public Law

12 April 2018

In this article I will attempt to summarise what I understand to be the position on the thorny question of when and if the Children’s Guardian should attend and what role the Guardian would play in a Fact Finding Hearing in care proceedings.

We have all experienced cases where the judge has expressed a clear view that there is no role for the CG at a FFH and cases where the representative for the CG has effectively sought to take over the role of presenting the LA’s case as if they were at the Old Bailey.

I start with the President’s Practice Direction dated 1st April 2010 in which states:

At every hearing, the court should consider with the parties whether the CG may be excused attendance at the next hearing in accordance with rule 4.11A (4) FPR 1991 or rule 11(4) FPC(CA)R 1991 (para 33)

The court should always consider excusing the children’s guardian from attending a FFH. If the court does not excuse attendance it should record the purpose for which the CG is to attend and whether and if so at what point it is appropriate to release the CG (eg. at the conclusion of any discussions between the parties or after hearing the oral evidence of family members) (para 34)

However, in Cumbria CC v KW [2016] EWHC 26 (Fam) Hayden J said (at para 58):

“I record that the Guardian thought it appropriate not to advance any submissions on the findings sought by the Local Authority. This is a wide spread practice which I would, for my part, strongly deprecate, in most cases. The importance of strong, intellectually rigorous representation on behalf of the child’s lawyer and his Guardian, has been emphasised regularly see GW and PW v Oldham MBC [2005] EWCA CIV1247; Re U (A Child) [2005] 2 FLR 444; Islington LBC v Al-Alas and Rway [2012] 2 FLR 1239. These principles apply just as vigorously, in my judgement, to the fact-finding process. A position of neutrality motivated solely by desire to be independent and objective in the eyes of the parents loses sight of the primary professional obligation to the child. I am aware that others take a different view.”

In GW & PW v Oldham MBC and KPW (a child). [2005] EWCA Civ 1247, Lord Justice Wall, as he then was, said:

“Whilst a guardian, quite properly, may wish to remain neutral in a fact finding hearing, it seems to me worth remembering that the guardian (and the solicitor instructed by the guardian) do, in my judgement, have a proactive role to play in ensuring that a case is ready for hearing, and that all appropriate evidence has been assembled. Accordingly, if a guardian takes the view that a second opinion sought by parents is properly necessary to achieve justice, he or she should not hesitate to say so. As I made clear in Re CB and JB (Care Proceedings: Guidelines)[1998] 2 FLR 211, 229-230, the relationship between the guardian and her solicitor needs to be intellectually rigorous, and in my judgement it is for the guardian and the solicitor he or she has instructed carefully to examine the factual sub-stratum of the case, and to advise the judge what evidence is required to enable the judge to reach a just conclusion.” (para 48).

In Re U (A Child) [2005] 2 FLR 444 Dame Butler- Sloss (as she then was) said the following whilst commenting on the role of the guardian:

At para 96:

We have set out above the steps taken by the solicitor for the mother to exclude the guardian from playing any part in the further expert’s meeting, even to the extent of indicating that she should not even attend the meeting. We should like to express our concern that the local authority should have remained relatively neutral on this point and that the guardian does not appear to have made a strong objection to this attack on her impartiality. We should like to make it clear that in the view of the court there were no grounds revealed in the papers which justified the removal of the guardian from her traditional role nor from playing any further part in the case had it gone further. Equally there would appear to be no grounds advanced for the suggestion…… that the solicitor for the child should consider her position.

At para 97:

We are also concerned that the approach adopted by (the applicant’s solicitor) might reflect that taken by other solicitors acting for parents in these difficult and fraught cases. We feel therefore that some comments should be made about the functions and role of the guardian of a child in a care application in order to remind the legal advisers as to the unsuitability of the course adopted in this case and with the hope that it may in future avoid a repetition of misunderstandings as to the guardians role.

At para 98:

In the Children Act 1989 the role of the guardian is crucial. A guardian is appointed to represent the child unless the court is satisfied that it is not necessary to do so in order to safeguard the child’s interests (see section 41(1)). The FPR and FPC Rules 1991 set out in detail the statutory requirements of a guardian. A guardian is appointed unless the court is satisfied that it is not necessary to do so to safeguard the child’s interests. Rules 11 and 11A (FPR), for example, provide for the powers and duties of the guardian which continue for such time as is specified in the appointment or until determined by the court, see rule10 (9). The independence of the guardian is underlined by the exclusion of anyone who comes within the provisions of rule 10 (7), such as a person employed by the applicant local authority. This independence on behalf of the child is an essential element in the hearing of a care application. The court is entitled to rely upon and does rely upon the investigations of and pays close attention to the recommendations of the guardian who looks at the case from an impartial and objective standpoint. The guardian has a duty to form a view of the application and, where appropriate, recommend a course honestly believed by the guardian to be in the best interest of the child he/she represents, whether it be to advise the return of the child of the family or to advise the removal of the child permanently from the natural family.

At para 99:

No party is now entitled in a private law dispute to have the welfare officer removed from the case (now the Cafcass reporter) on the ground at the report is favourable to the other party. In the same way a party in a public law case is not entitled to attempt to dispense with the guardian or marginalise the guardian on the ground that in an earlier part of the case, the guardian’s recommendation had been adverse to that party (see generally independence of court welfare and guardian in Re S [1993] 1FLR 110; [1992 2 FCR 554). Other than in exceptional circumstances of specific bias or impropriety, the independence of the guardian may not be impugned as a result of the decision of the guardian to support the proposed care plan for local authority.

Islington LBC v A-A and R [2012] 2 FLR 1239.

The hearing lasted four weeks and the vast majority of witnesses were clinicians or medical experts. The LA’s case was that the child had died as a result of inflicted trauma caused to him whilst in the care of his parents. The LA further alleged that the child had suffered a number of fractures, despite having rickets, caused by non accidental injury.

The case generated a considerable amount of publicity at the time of the criminal trial.

In the care proceedings the judge, Theis J, commented that some of the medical issues considered in the case generated debate both within and outside the medical arena and commented that it was important to remember that her conclusions related entirely to the facts of this particular case.

Despite their differences of opinion, all the medical experts agreed that this was an extremely complex case and the judge commented that the case was very fact specific and that great caution should be adopted in using her conclusions to support any wider views outside the very specific facts of the case.

The CG took no active part in the fact finding hearing and at the end of her judgement Mrs Justice Theis commented that:

 “the role of the CG can include drawing to the court’s attention to all relevant matters to assist in the fact finding exercise (see Lancashire v DE [2010] 196 at para 19]. In my judgement in cases as complex as this that remains a valuable role for the CG to have. With the benefit of hindsight it is perhaps a role that should have been given more robust encouragement in this case at a CMC”. (para 238).

Unfortunately there does not appear to be a consensus of opinion or approach to the question of whether or not the guardian should attend or play an active role in a fact-finding hearing. Whilst accepting that the guardian may wish to play a neutral role at fact finding hearing such an approach is not mandatory.

It is, however, mandatory for the guardian to attend a fact finding hearing unless excused by the court (FPR 1991 R4.11 A (4.).

Other factors may also need to be considered.

It is not unknown for discussions to take place at court between those representing the parents and the local authority with regard to threshold findings leaving out facts that the guardian may believe are crucial to the child’s welfare and that which may, if found proved, be material to the issue of future risk/parenting assessment. The guardian has a duty to raise such matters and advise the court about them (see R4.11 A (4)(f).

In any event, in line with the above authorities the guardian and the child’s solicitor have a duty to ensure that all the appropriate evidence is properly and fully explored on the basis that it is in the public interest and interest of the child, when he or she is an adult, to know the truth about who injured them.

This is particularly relevant to the issue of any expert to be instructed to carry out a risk assessment following a fact-finding hearing. If the guardian has not played an active role in the fact-finding hearing it may be difficult for him or her to form a proper view with regard to the appropriate expert.

Unfortunately, the above comments of Hayden J do not form part of the ratio so it is not a binding proposition and as Hayden J says himself at the end of his judgement he knows others take a different view to him.

However, it is my firm view that the Guardian has an important part to play in a fact-finding hearing and that the guardian and their representatives have a duty to make sure that they do whatever they can to assist the court in establishing the truth of what has happened to the child, to make sure that the right documents are obtained, that the right experts asked the right questions, and that all of the proper issues ate investigated by the court.

It is essential and important for the child, and any siblings, that the court comes to the right conclusion and for the right reasons. It must be for the guardian and their legal representative to decide on the facts of each individual case what role they wish to play in any fact-finding hearing but equally they should resist any pressure that the guardian should be excluded from having as proactive a role at a fact-finding hearing as he or she chooses and should not be prevented from doing so.

It is also perhaps worth remembering that Designated Family Judges (DFJ’s) have no power to make practice directions. Before the creation of the Unified Family Court, Senior Family Judges could make local directions, with the President’s approval, but this is no longer the case. It is not clear what power now enables DJs to make local practice directions and there is a risk that any local practice directions may be ultra vires.

DFJs can issue local guidance, but that is different concept.











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