Children Act, 20 years on: Care pressures threaten guardian role

One of the Children Act’s most highly regarded reforms appears in section 41, writes Camilla Pemberton. This introduced the right of children in some family court proceedings to be allocated a guardian ad litem, a qualified social worker appointed by the court “to safeguard the interests of the child”,

But increasing pressures on Cafcass, the body set up in 2001 to manage the guardian service, has led to concerns that the interpretation of section 41, and even changes to its wording in law, could dilute the role of the guardian.</P

As Cafcass grapples with a rise in demand for its services following the baby Peter case, it has changed its procedures so incoming referrals are allocated to a duty team rather than a named practitioner.

But Alison Paddle, former chair of guardians’ professional association Nagalro, says this undermines the child’s right to a named guardian who can develop an understanding of their needs. She fears the guardian’s role is “under threat in a way never seen before”.

Independent voice

The guardian acts as the independent voice of a child and is responsible for assessing their needs and wishes. He or she provides the court with advice and reports and may conduct independent investigations into a child’s personal circumstances.

Therefore, says Paddle, guardians must have confidence in their ability to “rigorously assess” a child’s needs.

Family lawyer Barbara Hopkin says Cafcass’s duty system means “fewer children are being seen by guardians, and some see an overwhelming number of experts and duty teams”. She adds: “Section 41 clearly states that the court ‘shall appoint a guardian’. If you dissipate this responsibility you undermine the efficacy of the service.”

Chris Goulden, co-chair of the children committee at Resolution, which represents family lawyers, says the tandem model, whereby a guardian and solicitor work jointly on a case, is also under threat. “This is problematic because guardians investigate the child’s welfare needs in a manner which lawyers are not qualified to do,” he says.

Despite the concerns of family law professionals, Cafcass chief executive Anthony Douglas says the allocation of cases to duty teams is “unavoidable” due to the extra pressures on Cafcass. But although duty teams take on cases initially, “about 90%” of children are allocated named guardians within three to four weeks of referral.

Douglas says it is not Cafcass’ place to lobby the government for a change to the wording of the Children Act so that named guardians would not need to be appointed to cases. Goulden opposes any move in that direction, describing it as “unthinkable”.

Ths article is published in the 29 October issue of Community Care magazine under the heading Care pressures threaten guardian role

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