It's important that the child/children's needs are placed first after a relationship breaks up, deciding on the correct representation is the best way to achieve this; as it allows your children to express their views and wishes for their future.
Slater and Gordon has the largest team of Family Lawyers in the UK and can provide immediate legal representation anywhere in England & Wales. We offer both flexible pricing and fixed fees for Child Mediation and for all our family law services.
Courts in England, Wales & Internationally are increasingly aware of the autonomy of young people. They have a recognised right to be involved in decisions made that affect them. There are different models and levels of representation for ensuring a young person’s voice is heard properly in Court proceedings affecting them. Which particular model is appropriate will depend for the most part on the age and understanding of the young person involved, and the questions that the Court is being asked to decide.
In many cases, a young person’s wishes, opinions and feelings can be effectively communicated through an agency called CAFCASS. CAFCASS stands for Children and Family Court Advisory and Support Service. It operates independently of Courts, Social Services, Education and Health Authorities and all similar agencies. The role of CAFCASS includes to:
The involvement of CAFCASS can vary from case to case. Where the issues in dispute are straightforward, a CAFCASS Officer may speak informally with the young person and then report back to the Court on what is said. In more complex cases a CAFCASS officer might meet with the young person a number of times and in different settings in order properly to apprise the Court about his or her circumstances and point of view.
There are some cases where the needs of the children involved require a higher level of representation than a CAFCASS Officer can provide. In those cases, the Court can appoint a Guardian to represent the child/children. Most Guardians come from a social science background, although it is possible for a Child Law Solicitor to act as a Guardian. A Guardian, if appointed, is required to represent the young person’s best interests. He or she will have some of the same functions as a CAFCASS Officer. However, unlike a CAFCASS Officer, a Guardian plays an active part in Court proceedings. He or she is entitled to file statements, call witnesses, test evidence and make submissions on the facts and the Law to the Court. When the Guardian appointed is not a Child Law Solicitor, he or she is required also to appoint a Solicitor to make sure that all aspects of the young person’s case are properly prepared and delivered.
Although it is uncommon, the Court will sometimes give permission to a young person to instruct a Solicitor direct, and to participate in Court proceedings without a Guardian. A Court will consider giving this permission to a young person if he or she is mature enough to understand and give instructions about the case without needing the help of a Guardian to do so. The test is understanding-driven: There is no particular “magic” age where a young person will be presumed to have the capacity to instruct a Solicitor direct. For the most part, understanding keeps pace with age, and it will be relatively easy to persuade a Court that a thirteen or fourteen year old has sufficient understanding. However, a mature and emotionally developed ten year-old may have the same level of understanding as an immature adolescent; and so it is that issue - the young person’s understanding - that is the deciding feature.
There is no definitive list of circumstances for when it is appropriate for a young person to be separately represented, either through a Guardian or by instructing a Solicitor direct. However, some situations where a Court is likely to consider the young person might benefit from separate representation include:
It's important to remember that this list is meant to be illustrative but not exhaustive. There will be other situations where separate representation may be appropriate that are not covered by the examples given. The fundamental test is that the Court will involve a young person in proceedings, and allow them the representation appropriate to their understanding, if it is in their best interests.
We have many years' experience in taking instructions from and giving legal advice to young people affected by the situations described above. We have represented many young people in Court proceedings, both with and without Guardians. Our expert Child Mediation Solicitors effectively advocate their views, challenge evidence and make legal submissions on their behalf.
There are also models of Alternative Dispute Resolution that involve the viewpoint of the young people affected, such as Child-Inclusive / Consultation Mediation. We can help separating parents to identify the right resource if they believe these models might help their family.
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