Representing the child: the evolution of the guardian ad litem in care proceedings

Abstract

The aim of the study is to illuminate the legal, social and administrative context of the "safeguarding" and representational role of the guardian ad litem in care proceedings, a senior social worker appointed by the court to represent the child and to act independently of the other parties. The study sets out to compare this role with representational roles in other kinds of proceedings where the "best interests" of a child are a consideration, and to evaluate its effectiveness. The areas of enquiry that are addressed are: the historical background, the legal context, representation in other child-related proceedings, the administrative structure, and the role and professional practice of the guardian ad litem. The study reveals that, owing to the separate evolution of the various pieces of legislation concerning the care and upbringing of children, there is only a tenuous connection between these representational arrangements. It also reveals that, while the role of the guardian ad litem in care proceedings was originally conceived as an extra safeguard to protect children from parental abuse and neglect at a time when social workers were considered not interventionalist enough, the role under the Children Act 1989 reflects a new perception of children’s interests, and an awareness that public care holds its own dangers. Although the guardian, in partnership with the child's solicitor, is the advocate of the child's case, case law has defined the role as essentially investigative and advisory; having no legal powers, the guardian must seek to bring about change through persuasion. It may be, however, that through his or her very presence as an outside observer, important influences on the dynamics of the situation may result. Whilst the role is hindered by certain legal and administrative constraints, which are examined in detail in the study, it also has important strengths relating to child advocacy, to the courts and to the local authorities.