Children Act 1989

Guardians ad litem E+W

41 [F1 Representation of child] E+W

(1) or the purpose of any specified proceedings, the court shall appoint [F2 an officer of the Service][F3 or a Welsh family proceedings officer] for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.

(2) The [F2 officer of the Service][F4 or Welsh family proceedings officer] 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 [F2 officer of the Service][F4 or Welsh family proceedings officer] 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

[F5 (hh) on an application for the making or revocation of a placement order (within the meaning of section 21 of the Adoption and Children Act 2002);]

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

[F6 (6A) The proceedings which may be specified under subsection (6)(i) include (for example) proceedings for the making, varying or discharging of a section 8 order.]

F7 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(a) the assistance which any [F2 officer of the Service][F8 or Welsh family proceedings officer] may be required by the court to give to it;

(b) the consideration to be given by any [F2 officer of the Service][F8 or Welsh family proceedings officer] , 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 [F2 officers of the Service][F9 or Welsh family proceedings officers] 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 [F2 an officer of the Service][F10 or a Welsh family proceedings officer] 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.

F7 (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 S. 41 side note substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 91(e); S.I. 2001/919, art. 2(f)(ii)

F2 Words in s. 41(1)(2)(4)(a)(10)(a)(b)(c)(11)(a) substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 91(a)(b)(c); S.I. 2001/919, art. 2(f)(ii)

F3 Words in s. 41(1) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 9(2); S.I. 2005/700, art. 2(2)

F4 Words in s. 41(2)(4)(a) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 9(3); S.I. 2005/700, art. 2(2)

F5 S. 41(6)(hh) inserted (30.12.2005) by 2002 c. 38, ss. 122(1)(a), 148 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(k)

F6 S. 41(6A) inserted (7.12.2004) by 2002 c. 38, ss. 122(1)(b), 148 (with Sch. 4 paras. 6-8); S.I. 2004/3203, art. 2(1)(l)

F7 S. 41(7)-(9)(12) repealed (1.4.2001) by 2000 c. 43, ss. 74, 75, Sch. 7 Pt. II para. 91(d), Sch. 8; S.I. 2001/919, art. 2(f)(ii)(g)

F8 Words in s. 41(10)(a)(b) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 9(4)(a); S.I. 2005/700, art. 2(2)

F9 Words in s. 41(10)(c) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 9(4)(b); S.I. 2005/700, art. 2(2)

F10 Words in s. 41(11) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 9(5); S.I. 2005/700, art. 2(2)

Modifications etc. (not altering text)

C1 S. 41 modified (26.7.2010) by The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), regs. 1(2), 5(3)(c)

C2 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)

42 [F11 Right of officer of the Service to have access to local authority records] E+W

(1) Where [F12 an officer of the Service][F13 or Welsh family proceedings officer] has been appointed [F14 under section 41] 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 [F15 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; F16 . . .

(b) any F16 . . . records of, or held by, a local authority which were compiled in connection with any functions which [F17 are social services functions within the meaning of] the M1 Local Authority Social Services Act 1970, so far as those records relate to that child.

[F18 ; 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 [F19 an officer of the Service][F13 or Welsh family proceedings officer] 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.

[F20 (4) In this section “authorised person” has the same meaning as in section 31.]

Textual Amendments

F11 S. 42 sidenote substituted (1.4.2001) by 2000 c. 43, s. 74, Sch.7 Pt. II para. 92(c); S.I. 2001/919, art. 2(f)(ii)

F12 Words in s. 42(1) substituted (1.4.2001) by 2000 c. 43, s. 74, 80, Sch. 7 Pt. II para. 92(a)(i); S.I. 2001/919, art. 2(f)(ii)

F13 Words in s. 42(1)(2) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 10; S.I. 2005/700, art. 2(2)

F14 Words in s. 42(1) substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 92(a)(ii); S.I. 2001/919, art. 2(f)(ii)

F15 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.

F16 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.

F17 Words in s. 42(1)(b) substituted (26.10.2000 for E. and otherwise 28.7.2001) by 2000 c. 22, ss. 107, 108(4), Sch. 5 para. 20; S.I. 2000/2849, art. 2(f)

F18 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.

F19 Words in s. 42(2) substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 92(b); S.I. 2001/919, art. 2(f)(ii)

F20 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

M1 1970 c. 42.