Children Act 1989

Guardians ad litem E+W

41 Representation of child and of his interests in certain proceedings. E+W

(1) For the purpose of any specified proceedings, the court shall appoint a guardian ad litem for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.

(2) The guardian ad litem shall—

(a) be appointed in accordance with rules of court; and

(b) be under a duty to safeguard the interests of the child in the manner prescribed by such rules.

(3) Where—

(a) the child concerned is not represented by a solicitor; and

(b) any of the conditions mentioned in subsection (4) is satisfied,

the court may appoint a solicitor to represent him.

(4) The conditions are that—

(a) no guardian ad litem has been appointed for the child;

(b) the child has sufficient understanding to instruct a solicitor and wishes to do so;

(c) it appears to the court that it would be in the child’s best interests for him to be represented by a solicitor.

(5) Any solicitor appointed under or by virtue of this section shall be appointed, and shall represent the child, in accordance with rules of court.

(6) In this section “specified proceedings” means any proceedings—

(a) on an application for a care order or supervision order;

(b) in which the court has given a direction under section 37(1) and has made, or is considering whether to make, an interim care order;

(c) on an application for the discharge of a care order or the variation or discharge of a supervision order;

(d) on an application under section 39(4);

(e) in which the court is considering whether to make a residence order with respect to a child who is the subject of a care order;

(f) with respect to contact between a child who is the subject of a care order and any other person;

(g) under Part V;

(h) on an appeal against—

(i) the making of, or refusal to make, a care order, supervision order or any order under section 34;

(ii) the making of, or refusal to make, a residence order with respect to a child who is the subject of a care order; or

(iii) the variation or discharge, or refusal of an application to vary or discharge, an order of a kind mentioned in sub-paragraph (i) or (ii);

(iv) the refusal of an application under section 39(4); or

(v) the making of, or refusal to make, an order under Part V; or

(i) which are specified for the time being, for the purposes of this section, by rules of court.

(7) The Secretary of State may by regulations provide for the establishment of panels of persons from whom guardians ad litem appointed under this section must be selected.

(8) Subsection (7) shall not be taken to prejudice the power of the Lord Chancellor to confer or impose duties on the Official Solicitor under section 90(3) of the M1 Supreme Court Act 1981.

(9) The regulations may, in particular, make provision—

(a) as to the constitution, administration and procedures of panels;

(b) requiring two or more specified local authorities to make arrangements for the joint management of a panel;

(c) for the defrayment by local authorities of expenses incurred by members of panels;

(d) for the payment by local authorities of fees and allowances for members of panels;

(e) as to the qualifications for membership of a panel;

(f) as to the training to be given to members of panels;

(g) as to the co-operation required of specified local authorities in the provision of panels in specified areas; and

(h) for monitoring the work of guardians ad litem.

(10) Rules of court may make provision as to—

(a) the assistance which any guardian ad litem may be required by the court to give to it;

(b) the consideration to be given by any guardian ad litem, where an order of a specified kind has been made in the proceedings in question, as to whether to apply for the variation or discharge of the order;

(c) the participation of guardians ad litem in reviews, of a kind specified in the rules, which are conducted by the court.

(11) Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of—

(a) any statement contained in a report made by a guardian ad litem who is appointed under this section for the purpose of the proceedings in question; and

(b) any evidence given in respect of the matters referred to in the report,

in so far as the statement or evidence is, in the opinion of the court, relevant to the question which the court is considering.

[F1 (12) The Secretary of State may, with the consent of the Treasury, make such grants with respect to expenditure of any local authority—

(a) in connection with the establishment and administration of guardian ad litem panels in accordance with this section;

(b) in paying expenses, fees, allowances and in the provision of training for members of such panels,

as he considers appropriate.]

Textual Amendments

F1 S. 41(12) added (14.10.1991) by Courts and Legal Services Act 1990 (c. 41, SIF 76:1), s. 116, Sch. 16 para. 17; S.I. 1991/1883,art. 3, Sch.

Modifications etc. (not altering text)

C1 S. 41(2) modified (14. 10. 1991) by S.I. 1991/1395, rules. 1, 11(1)

Commencement Information

I1 S. 41 in force at 14.10.1991 see s. 108(2)(3) and S.I. 1991/828, art. 3(2)

Marginal Citations

M1 1981 c. 54.

42 Right of guardian ad litem to have access to local authority records. E+W

(1) Where a person has been appointed as a guardian ad litem under this Act he shall have the right at all reasonable times to examine and take copies of—

(a) any records of, or held by, a local authority [F2 or an authorised person]which were compiled in connection with the making, or proposed making, by any person of any application under this Act with respect to the child concerned; F3 . . .

(b) any F3 . . . records of, or held by, a local authority which were compiled in connection with any functions which stand referred to their social services committee under the M2 Local Authority Social Services Act 1970, so far as those records relate to that child.

[F4 ; or

(c) any records of, or held by, an authorised person which were compiled in connection with the activities of that person, so far as those records relate to that child.]

(2) Where a guardian ad litem takes a copy of any record which he is entitled to examine under this section, that copy or any part of it shall be admissible as evidence of any matter referred to in any—

(a) report which he makes to the court in the proceedings in question; or

(b) evidence which he gives in those proceedings.

(3) Subsection (2) has effect regardless of any enactment or rule of law which would otherwise prevent the record in question being admissible in evidence.

[F5 (4) In this section “authorised person” has the same meaning as in section 31.]

Textual Amendments

F2 Words in s. 42(1)(a) inserted (14.10.1991) by Courts and Legal Services Act 1990 (c. 41, SIF 76:1), s. 116, Sch. 16 para. 18(2); S.I. 1991/1883,art. 3, Sch.

F3 Words in s. 42(1) repealed (14.10.1991) by Courts and Legal Services Act 1990 (c. 41, SIF 76:1), s. 125(7), Sch. 20; S.I. 1991/1883,art. 3, Sch.

F4 S. 42(1)(c) added (14.10.1991) by Courts and Legal Services Act 1990 (c. 41, SIF 76:1), ss. 116, Sch. 16 para. 18(3); S.I. 1991/1883, art. 3, Sch.

F5 S. 42(4) added (14.10.1991) by Courts and Legal Services Act 1990 (c. 41, SIF 76:1), s. 116, Sch. 16 para. 18(4); S.I. 1991/1883, art. 3, Sch.

Commencement Information

I2 S. 42 in force at 14.10.1991 see s. 108(2)(3) and S.I. 1991/828, art. 3(2)

Marginal Citations

M2 1970 c. 42.