Under section 41 of the Children Act it is deemed mandatory that a Children's Guardian is appointed in hearings considering applications for care or supervision orders. This is a pivotal role under the Act that states 'The Guardian shall be under a duty to safeguard the interests of the child' (Allen, 2005, P287). The Guardian must appoint a solicitor to represent the child and advise the court on the limitations of the child's understanding. It is also the Guardian's responsibility to take into consideration the wishes of the child regarding any matter.
The Guardian must submit a written report to the court and copies to the parties advising on the best interests of the child. The Guardian has authority to inspect and copy LA or NSPCC records. Interestingly, this material will be admissible in court as evidence; confirming that the powers given to the Guardian in his investigative role is reflective of the need to protect the interests of the child (Allen, 2005). It is the Guardians duty to present a balanced and fair assessment of the facts to the court; always considering the child's welfare as the priority.
Indeed, this is a critical duty as the Guardian's findings will be considered with weight by the magistrates (Brayne and Carr, 2005). In the scenario the Guardian has failed on every level. The Guardian has allowed the child to be present in court and to be questioned. Considering the child's young age, the Guardian has neglected to consider his limitations. In addition, no investigative work was carried out on behalf of the child and no report was filed with the court.
Most significantly, the Guardian gives the impression that her recommendation stems from her friendship with the Father who she states is her paramount consideration. It is clear that the child has been left with no representation as the Guardian has failed to appoint a solicitor. Consequently, the child's best interests have not been represented on any level. It is the applicant solicitor's duty to put the LA's case across at the hearing. Interestingly, the Children Act emphasises the promotion of co-operation between all parties to ensure swift and concise representation of the facts.
The family proceedings court operates with a fundamentally different approach to the criminal court. The principle aim, whether a private or public law case, is to steer away from legal issues in order to pursue practical solutions (Laken et al, 1997). It appears that the applicant's solicitor has overlooked this ethos. His approach is far more intimidating than would be expected in the family court. Consequently, the atmosphere is tense, with the Father becoming increasingly aggressive. This intimidating approach continues to be applied to the cross examination of the expert witnesses.
Paul has also been questioned in this manner which is highly unethical. The best interest and welfare of the child has again been overlooked by another significant member of the proceedings (Laken et al, 1997). A crucial and influential part of family proceedings concerns expert evidence. Indeed, rules govern the way that evidence is heard in court. A fundamental part of the procedure requires each of the parties to file written statements with the court before the hearing outlining the content and substance of the oral evidence which they will give.
Copies of these statements must also be served on the other parties to ensure full co-operation and information sharing throughout the proceedings. Interestingly, the court can allow evidence which has not been previously presented. However, permission must not be taken for granted as is the case in the scenario (Allen, 2005). Consequently, conflicting evidence has been presented. The Children Act states that expert witnesses must 'come prepared to demonstrate their area for expertise with reference to the specific facts of the case' (Allen, 2005 P216).
This crucial necessity has been overlooked by some experts who have come unprepared and unclear about their evidence. Indeed, this will undoubtedly cause interruption in proceedings infringing on the 'non-delay' principle. The Magistrates must retire to weigh up the evidence that has been presented to the court in order to make their final decision. Laken et al (1997) suggests that care proceedings are considered among the most difficult for Magistrates to decide upon. Consequently, the Children Act sets out principles that aid the decision making process.
Firstly and fundamentally the welfare principle requires the court to place paramount consideration on the welfare and best interests of the child. The no-order principle necessitates the court to make no order at all unless the threshold criteria under section 31 of the Act have been met and all other possible avenues have been considered (Allen, 2005). Interestingly, the court can apply a mix and match principle to make the best order for the child; this may not be the order that has been applied for (Brayne and Carr, 2005).
The non-delay principle regards any delay to proceedings as probable to prejudice the child's welfare. In addition, the welfare check list supplements these principles by containing a list of factors for the court to bear in mind when summing up the evidence. This check list is a valuable tool 'to remind the judge of important pointers' that may lead to a decision (Allen, 2005, P57). The court must ensure full consideration of the case when dealing with interim care orders.
However, Brayne and Carr (2005) suggest that caution should be taken before changing a child's residence at this point, as additional upheaval may be destructive. The preferred course of action is to ensure safeguards are in place and to set an early hearing date. The magistrates have neglected this advice, allowing the child to reside back with the family until the full hearing even though he has already been moved once via the EPO. Therefore, there has been no consideration that the child may be moved again pending the full hearing.
There seems to be no recognition that there is reasonable cause for suspicion that the child is at significant risk of suffering harm, ignoring the threshold criteria. Most significantly the Magistrates have cited the Fathers welfare as being their main consideration not the child's going against the major tenets of the welfare principle. The magistrates also suggest that there is no urgency in deciding on an outcome, impeding the non-delay principle. Significantly the magistrates have also neglected to consider the welfare checklist in their decision making.
It is clear that the Children Act 1989 protects the welfare of children. However, there are many powers, principles and procedures which must be followed to apply this protection. It is clear from critically analysing the scenario that children can be put at immense risk if the recommendations of the Act are not upheld. Although the Act does in fact attempt to balance the rights of the child with the rights of the parents and the benefits of children being raised within the family; the child's welfare is of primacy, this principle is maintained throughout the Act (Brayne and Carr 2005).
Allen, N. (2005) Making Sense of the Children Act 1989 (5th Ed). West Sussex: John Wiley and Sons Ltd. Brayne, H. and Carr, H. (2005) Law for Social Workers (9th Ed). Oxford: Oxford University Press. Laken, E. et al. (1997) Introduction to the Family Proceedings Court. Winchester: Waterside Press. Magistrates Association. (2003) The Family Proceedings Court. www. magistrates-association. org. uk/youth_site/familycourts, date accessed: 21/03/06.