Welcome to Unit Chambers whistle stop tour of 16.4 guardians. Who are they? What do they do? Where can you get a 16.4 guardian? When is it appropriate to make an application? Why are they helpful? And, following a special request, I will finish with the legal considerations when your client has issues with the guardian and an application to replace or dismiss is being considered.

First, I must confess my own personal interest towards 16.4 guardian work. For full transparency, and as a little shout out to my old legal team, before joining Unit Chambers, I worked at NYAS, primarily running 16.4 cases on behalf of the children via their guardian.

The world of private law can be very hard to navigate. Without the benefit of social workers on the ground, we must trust that the primary carer is giving child-focused and accurate accounts of the children, their wishes and their wellbeing. This, as we know, is not always the case. So, I write this article with the hope of giving busy practitioners some tips to identify cases which could benefit from a 16.4 guardian, early in the proceedings. I emphasise early as much as I possibly can because this is crucial.

Who?

16.4 guardians are independent social workers (most commonly from Cafcass, but NYAS can also accommodate 16.4 appointments when Cafcass is struggling to do so) who complete direct work with the family and make recommendations to the court via reports and analysis.

For all the procedure nerds out there (welcome to the club), the origin of 16.4 appointments come from the FPR 2010 Part 16 and PD16A.

What?

In order to make their recommendations, a guardian will meet with the family and child, often observe contact and consider the court documents. A guardian’s recommendations should be grounded in what is in the best interests of the child, including all aspects of the welfare checklist. 

Where?

As you may know, guardians are automatically appointed in ‘specified proceedings’ (care/supervision order proceedings) and proceedings to which Part 14 applies (adoption). In private law cases, there is rarely a guardian. So, if you need one, where do you get one? Most commonly, the court will appoint a 16.4 guardian, on application (supported by evidence) from one of the parties, considering the criteria below. However, the court can appoint a guardian of its own motion, when it sees a need.

When?

16.4 guardians are most helpful early in proceedings. The reason will come as no surprise to the battle-tested legal professionals out there: the further into litigation a case gets and the more time that passes, the more entrenched and acrimonious parties become, making a logical, safe and sustainable outcome less and less achievable.  

So, what are the early tell-tale signs that your case needs a 16.4 guardian?

  A Cafcass officer/social worker recommends a 16.4 guardian – easiest route in

  The child has a standpoint which is incapable of being represented by any of the adult parties – e.g. does not want to live with either parent

  There is in intractable dispute between the parties – this is the one which usually springs from years and years of acrimonious litigation, if it can be pre-empted, by evidencing diametrically opposed views early in the proceedings, it will assist the case massively

  The views of the child cannot be adequately met by a report of the court – i.e. a child’s wish for complete severance of a relationship with one parent

  An older child is opposing a proposed course of action

  Complex medical/mental health issues

  International complications

  Serious allegations of physical, sexual or other abuse in relation to the child or serious allegations of domestic violence

  Where the proceedings concern more than one child and the welfare interests of the children conflict

  Contested issue about scientific testing

  PD16A, Part 4, para. 7.2

I would say, the most common factors in a 16.4 guardian case are one in which there are diametrically opposed views of the parents with cross allegations of domestic abuse and parental alienation/manipulation with very little contact or progression.

 Why?

16.4 guardians can be helpful because they will make child-focussed independent recommendations to the court. When acting for parents, these may be helpful recommendations, or not. So, as practitioners, we need to think carefully at the beginning of the case and decide:

  1. Can the case tolerate the delay that appointment will cause? If no, stop – if yes, keep going…
  2. Will the guardian make recommendations which will assist our client’s case? If no, stop – if yes, keep going…
  3. Can any of the above considerations be evidenced in an application for an appointment? If no, stop – if yes, then it may be that an application should follow…

The application is made pursuant to FPR 16.24(2)(a) or (b), either in the face of the court or via a C2 application, supported by evidence.

 Finally…

What happens when there is a 16.4 appointment, and your client falls out with the guardian or the guardian acts in a way which calls into question their duty to act with fairness?

First, it should be noted that terminating a guardian’s appointment or replacing a guardian is difficult. So, primary advice to clients should be to work with the guardian as best as they can. Unsurprisingly, a guardian making a recommendation a party does not like is not reason to suggest they are acting with bias or in an unfair way. Clients should be prepared for this from the start.

If there are real concerns about the bias or fairness the guardian is demonstrating, then an application to replace or discharge can be considered. The application is made pursuant to FPR 16.25(1)(b) or (c) and must be supported by evidence. 

It is better to frame the argument for discharge through the lens of fairness rather than apparent bias.

It is the Article 6 right of a party to a fair trial that will establish if a guardian can be removed or replaced. As explored in QS v RS and T (By her Children’s Guardian) [2016] EWHC 1443 (Fam), these questions must be asked:

  1. Does the person have a duty to act fairly?

PD16A para 7.6 states that a children’s guardian appointed under rule 16.4 is required to conduct proceedings on behalf of the child fairly, so we pass that hurdle.

  1. Did the person under the duty act with unfairness or bias to lead to unfairness in the proceedings?
  1. AND/OR did the guardian act manifestly contrary to the child’s best interests? (Re A (A Child) (Termination of appointment of children’s guardian) [2022] EWFC B16)

If yes to questions 2 or 3, then it may be that an application to terminate or replace the guardian has teeth. The application must be supported by both reasons and evidence. I emphasise again, the bar for this is high.

The court will consider the overriding objective in relation to the application, in particular delay (as a replacement will cause delay) and keeping the parties on an even footing. In the end, the discretion to deal with the application is entirely with the court, though it is noted that this power should be used in ‘very rare’ circumstances.

To give you some examples, below are cases in which applications were successful/unsuccessful:

CaseOxfordshire CC v P [1991] 1 WLR 543
ApplicationSuccessful
FactsPublic law case – the guardian had been interviewed by the police and, without leave of the court, disclosed that the mother had told her that she had caused injuries to the child.
ReasonThe termination was to encourage frankness with the guardian on the part of the parents, which would likely be limited following her disclosure of confidential information.
CaseQS v RS and T (By her Children’s Guardian) [2016] EWHC 1443 (Fam)
ApplicationUnsuccessful
Facts16.4 case – the guardian has expressed an opinion on the final welfare issue before the end of the evidence.
ReasonThe application was unsuccessful because there was insufficient evidence to support that the guardian’s final opinion was fully settled before the end of the proceedings.
CaseRe A (A Child) (Termination of appointment of children’s guardian) [2022] EWFC B16
ApplicationSuccessful
FactsThe guardian had personally emailed the father’s solicitor’s head of department (he was not the solicitor with conduct and without cc’ing any other party) criticising the father’s solicitor for questioning the social worker’s experience in completing a certain type of assessment. 
ReasonUnfairness to the parties, in particular to the father. Further, the guardian used a private form of communication to attempt to alter the father’s legal representation, both parents were likely to consider that the guardian did not think the normal rules of litigation applied to him.    

As you can see from the above, the key element is that your application is supported by evidence of unfairness/bias and/or behaviour which is manifestly contrary to the child’s best interests.  

In a case where the guardian has acted in a way which falls short of bias and unfairness, but in a way which your client does not like, the guardian can and should be robustly cross-examined in evidence including any methodology, reasoning and behaviour towards your client. As stated in QS v RS [2014] para.45, ‘a children’s guardian is a witness like any other, whose views have no preferential weight let alone determinative weight’. Of course, we know this is not entirely true in the real world, with the courts regularly preferring the recommendations of a guardian but it is something the court can certainly be reminded of in the frame of robust cross-examination. A soft victory but, sometimes, all we can do is play the hand we are dealt.

I’ll finish with one quote from Re A [2022], para. 135c):

To further the welfare interests of [the child], the guardian must be able to build a relationship with the parents, engage them, and for them to believe he will act fairly in representing their [child].

So, although the bar is high and you must have evidence, if your application can demonstrate that the guardian is unable to build a relationship with your client, engage them and your client does not believe they will act fairly, you may have a fighting chance. 

Written by Bella Tait, Pupil Barrister

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