PDSL6 Guidance on Separate Representation for Children in Matrimonial and Family Proceedings

Practice Direction - PDSL6

Guidance on Separate Representation for Children
in Matrimonial and Family Proceedings

Introduction

1. This Guidance is issued to assist Judges and family practitioners in considering whether an order should be made for separate representation of a child or children in Matrimonial Proceedings and Family Proceedings, Wardship Proceedings and Proceedings under the Child Abduction and Custody Ordinance (Cap.512), and is issued with the aim of ensuring consistency in the appointment of separate representatives.

2. Separate representation is not a must in all cases given that separate representation is not always in the best interests of the child.  This is because undue stress may be caused to the child who has no wish to participate as the child does not want to side with either parent.  Whilst children will have views during parental separation it does not follow that all children want to be actively and directly involved in the legal proceedings.  Further in cases where a child’s view is adequately reflected in evidence before the court such as a Social Investigation Report, separate representation may not be necessary or beneficial.  It is also recognized in other jurisdictions that separate representation of the child may result in a delay in the resolution of the proceedings.

The law on separate representation

3. Separate representation for children in matrimonial and family proceedings is provided for in the Matrimonial Causes Rules under Rules 72 and 108.  Rule 72 provides for separate representation for children in certain applications relating to financial and property matters and Rule 108 provides for separate representation in any matrimonial proceedings.  In addition, the High Court has inherent jurisdiction in wardship proceedings to provide for separate representation for the ward(s) involved.  Although there are no similar provisions in the Guardianship of Minors Ordinance, Cap.13 section 4(2) may enable the court to entertain the issue of separate representation.   Practice Direction 17.1 provides that if it is felt desirable or necessary for an infant to be separately represented in any proceedings, the Official Solicitor should be appointed as guardian ad litem where no other person is available for appointment.

4. There are two stipulations for separate representation in Rule 108.  They are the need for certification by a solicitor that the proposed separate representative for the child “has no interest in the proceedings adverse to that of the child and that he is a proper person to be such guardian” and that except for the Official Solicitor, the guardian ad litem and the legal representative cannot be one and the same person.

The role of the guardian ad litem

5. The role of the guardian ad litem is to represent the child’s interests (whichmay not always accord with the child’s own views) and the guardian adlitem will have the benefit of legal representation.  The primary purpose ofthe appointment is to ensure that the child’s perspective is actively pursuedin court.

6. The primary duty of a guardian ad litem is to represent the child’s interests which are likely to be conveyed to the court in a report which should have regard to the welfare checklist referred to in P v P (Children : Custody) [2006] 2 HKFLR 305 and SMM v TWM (Relocation of Child) [2010] HKFLR 308.  The report must not be disclosed to anyone other than a party to the proceedings without the leave of court.  Whether the report is disclosed to the child will depend upon his/her age, maturity and intellectual capacity. The appointment of the guardian ad litem is limited to the duration of the proceedings so that it is no longer effective once these are concluded.

How appointments for separate representation are made

7. The court can appoint either the Official Solicitor or a guardian ad litem for any child where it is of the opinion that such separate representation is appropriate.  Under Rule 108 of the Matrimonial Causes Rules (MCR), Cap.179 the court has a wide discretion to order that a child should be separately represented in any matrimonial proceedings.  The court can appoint the Official Solicitor if he consents or appoint another person on the application of that other proper person to be guardian ad litem.  Under Rule 72 of the MCR the court may order separate representation either by a solicitor or by a solicitor and counsel for children in relation to financial and property applications and may appoint the Official Solicitor or other fit person to be guardian ad litem of the children for the purpose of the application. 

8. Although there is no definition of who may be a “proper” or “fit” person, it is generally not considered appropriate for a child’s parent to be his guardian ad litem where the proceedings concern applications for custody and/or access or financial and property matters since there will inevitably be some conflict of interest (as may also be the case with members of the child’s immediate family).  In both Rules 72 and 108 there is a provision that unless the person appointed to separately represent the child is the Official Solicitor, a certificate must be filed by a solicitor that the person proposed to be guardian ad litem has no interest which is adverse to the child and that he is a proper person to be such guardian.  The effect of this provision is that the guardian ad litem who is not the Official Solicitor must represent the child through a solicitor.  Although a solicitor can be a proper or fit person to be appointed guardian ad litem, it would be inappropriate to do so where he has previously acted for one of the parties, even if he is no longer acting as such.  Even if a solicitor is appointed the guardian ad litem to represent a child, that solicitor must do so by engaging the services of another solicitor.

9. Where a proper person is appointed as the guardian ad litem, the question is who should be responsible for his remuneration and that of the solicitor appointed to act for him.  The proper person who is appointed guardian ad litem could apply for legal aid on behalf of the child.  However such funding will cover the solicitor who is assigned and any experts required but will not cover any expenses/fees the person may charge for acting as guardian ad litem.  Further if the representation is funded by the legal aid scheme the assigned solicitor will have the same obligation to have regard to the use of public funds as he has with adult clients.  In other words to ensure that there are reasonable grounds for continuing with the proceedings and that such proceedings are not conducted in such a manner as to incur unjustifiable expenses to the legal aid fund.

10. In the case of the Official Solicitor, he defrays the costs of providing representation for the child and will only apply to the court for an order for costs at the conclusion of proceedings.  Although courts should be free to invoke the assistance of the Official Solicitor and not be constrained by anxiety about the possible effect of costs on one or other or both of the parties to the proceedings, this does not mean that if the conduct of one or both of the parties warrant their being penalized by a costs order, this should not be done merely because the Official Solicitor is publicly funded.

11. The role of the Official Solicitor as a child’s separate representative is twofold: as an officer of the court the Official Solicitor investigates how the child’s interests are best served while simultaneously representing the child’s views as his solicitor in the proceedings.

12. Once appointed the child’s guardian ad litem is treated as a party to the proceedings for the purpose of service or notice to be given to a party.  In such cases it is uncommon for the child himself to be made a party to the proceedings.  The English Court of Appeal has however expressed the view in LvL (Minors)(Separate Representation) [1994] 1 FLR 156that children should generally be made parties so that their position in the proceedings is clear and to obviate any difficulties over who represents them on the court record.

Whether there should be a separate representative for a child

13. Separate representation for children should not be the norm but rather it should be decided by the judge on a case by case basis and where the circumstances justify it.

14. The judge in any given case is uniquely placed to be aware of the facts and issues in that case and will also have regard to the welfare of the child as the paramount consideration.  The judge is therefore the best person to exercise the discretion to order separate representation.  The test is whether it appears to the court that separate representation is in the best interests of the child.  In considering whether a child should be separately represented the court will take into account factors such as avoidance of delay and whether other alternatives have been explored such as requesting the social worker to carry out further work or obtaining expert evidence.  The question of separate representation is a balance between the risk of potential harm to the child if he has no voice in the proceedings, the risk of adverse effects on a child who is reluctant to be drawn into a parental dispute and the cost and time burden to the family courts which increased representation will bring.

Circumstances in which a separate representative will be appointed

15. It is not possible to anticipate every set of circumstances in which such representation will be appropriate.  Solely by way of guidance the following are a non exhaustive list of circumstances where the judge could consider making an order for a child to be separately represented :

(i) Where there is an intractable dispute over custody or access including where all access has ceased or where there is irrational but implacable hostility to access or where the child may be suffering harm associated with the access dispute or where it is intended that there be termination of access;

(ii) Where a parent is under a disability and represented through a guardian adlitem or next friend and custody/access is in dispute;

(iii) Difficult cases which involve a foreign element, immigration problems or permanent removal from the jurisdiction such that it would for all practical purposes exclude the other party from the possibility of access to the child;

(iv) Where the child has a standpoint or interests which are inconsistent with or incapable of being represented by any of the adult parties or cannot be adequately metby a report to the court;

(v)  Where an older child is opposing a proposed course of action;

(vi) Where the child is apparently alienated from one or both parents;

(vii) Where there are real issues of cultural or religious differences affecting the child;

(viii) Where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child;

(ix) Where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of a social welfare officer;

(x) Where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position;

(xi) Where there is a contested issue about blood testing;

(xii) Where the conduct of either or both of the parents or some other personhaving significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare;

(xiii) Where on the material filed by the parents, neither parent seems a suitable custodian;

(xiv) Where a child of mature years is expressing strong views and if given effect would involve changing a long standing custodial arrangement or a complete denial of access to one parent;

(xv) Where it is proposed to separate siblings;

(xvi) In relation to applications in the court’s welfare jurisdiction relating inparticular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties;

(xvii)  Where none of the parties are legally represented.

16. This Guidance shall take effect on 3 October 2012.

Dated this 23^rd  day of July 2012.