The Magistrates' Courts (Children and Young Persons) Rules 1988

Appointment and duties of guardianad litem.

31.—(1) In any proceedings under section 3(6) or 5(4) of the Act of 1980 in which the court makes the child a party to the proceedings, the court shall appoint a guardianad litem of the child for the purposes of the proceedings unless the court is satisfied that to do so is not necessary for safeguarding the interests of the child.

(2) An appointment of a guardianad litem under section 7 or 12F(3) of the Act of 1980 shall be made by order and the person to be appointed shall be selected from a panel established by regulations under section 103 of the Children Act 1975(1) except that the person appointed shall not—

(a) be a member, officer or servant of a local authority or voluntary organisation which is a party to the proceedings; or

(b) be, or at any time have been, a member, officer or servant of a local authority or voluntary organisation who has been directly concerned in that capacity in arrangements relating to the care, accommodation or welfare of the child; or

(c) be a serving probation officer (except that a probation officer who has not in that capacity been previously concerned with the child or his family and who is employed part-time may, when not engaged in his duties as a probation officer, act as a guardianad litem).

(3) Where the court has appointed a guardianad litem under the said section 7 or 12F(3) and it appears to the court desirable that some other person should act as guardianad litem in substitution for the person appointed earlier the court shall, by order, revoke the earlier appointment and make a new appointment.

(4) The powers of the court to appoint a guardianad litem under the said section 7 or 12F(3) and to give directions concerning legal representation of the child in accordance with paragraph (6)(c) or concerning any other matter in accordance with paragraph (6)(e) shall also be exercisable, before the hearing of the complaint, by a single justice or by the justices' clerk; and where the power to appoint a guardianad litem is so exercised, the single justice or the justices' clerk shall on the same occasion consider whether the child should be legally represented and may direct that the guardianad litem so appointed is to instruct a solicitor to represent the child.

(5) The court shall cause notice of an order appointing a guardianad litem to be given to the guardianad litem, the complainant, the defendant, the child to whom the proceedings relate and any other person to whom notice of the hearing has been given under rule 30(1).

(6) The guardianad litem appointed under the said section 7 or 12F(3) with a view to safeguarding the interests of the child before the court shall—

(a) so far as it is reasonably practicable, investigate all circumstances relevant to the proceedings and for that purpose shall interview such persons, inspect such records and obtain such professional assistance as the guardianad litem thinks appropriate;

(b) regard as the first and paramount consideration the need to safeguard and promote the child’s best interests until he achieves adulthood, and shall take into account the wishes and feelings of the child, having regard to his age and understanding, and shall ensure that those wishes and feelings are made known to the court;

(c) except where a solicitor has been instructed to represent the child before the appointment of the guardianad litem or a direction has been given in accordance with paragraph (4) that a solicitor be instructed, obtain the views of the court as to whether the child should be legally represented and, unless the court otherwise directs, instruct a solicitor to represent the child;

(d) consider how the case should be presented on behalf of the child, acting in conjunction with the solicitor in a case in which one has been instructed (whether by the guardianad litem or otherwise) to represent the child; and shall, in such a case, instruct the solicitor (unless the solicitor considers, having taken into account the views of the guardianad litem, that the child wishes to give instructions which conflict with those of the guardianad litem and that he is able, having regard to his age and understanding, to give instructions on his own behalf);

(e) seek the views of the court in any case where difficulties arise in relation to the performance of his duties;

(f) as soon as practicable make a report in writing to the court;

(g) perform such other duties as the court may direct.

(7) When the court has concluded the hearing of the complaint the guardianad litem shall consider, acting in conjunction with the solicitor in a case in which the child is legally represented, whether it would be in the child’s best interests to appeal to the High Court and, if he considers that it would be, he shall ensure that notice of appeal is given on behalf of the child (unless the solicitor, in a case in which the child is legally represented, considers, having taken into account the views of the guardianad litem, that the child wishes to give instructions which conflict with those of the guardianad litem and that he is able, having regard to his age and understanding, to give such instructions on his own behalf).

(1)

1975 c. 72; section 103 was amended by the Act of 1980, Schedule 5, paragraph 37 and the Health and Social Services and Social Security Adjudications Act 1983, Schedule 1, paragraph 4 and Schedule 2, paragraph 28; the relevant regulations are S.I. 1983/1908.