Child representation in court proceedings CA 1989 s. 41
Section 41 of CA 1989 requires courts to appoint an officer or solicitor for a child in specified family proceedings to safeguard their interests.
or the purpose of any specified proceedings, the court shall appoint an officer of the Service or a Welsh family proceedings officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests. The officer of the Service or Welsh family proceedings officer shall— be appointed in accordance with rules of court; and be under a duty to safeguard the interests of the child in the manner prescribed by such rules. Where— the child concerned is not represented by a solicitor; and any of the conditions mentioned in subsection (4) is satisfied, the court may appoint a solicitor to represent him. The conditions are that— no officer of the Service or Welsh family proceedings officer has been appointed for the child; the child has sufficient understanding to instruct a solicitor and wishes to do so; it appears to the court that it would be in the child’s best interests for him to be represented by a solicitor. Any solicitor appointed under or by virtue of this section shall be appointed, and shall represent the child, in accordance with rules of court. In this section “ specified proceedings ” means any proceedings— on an application for a care order or supervision order; in which the court has given a direction under section 37(1) and has made, or is considering whether to make, an interim care order; on an application for the discharge of a care order or the variation or discharge of a supervision order; on an application under section 39(4); in which the court is considering whether to make a child arrangements order with respect to the living arrangements of a child who is the subject of a care order; with respect to contact between a child who is the subject of a care order and any other person; under Part V; on an appeal against— the making of, or refusal to make, a care order, supervision order or any order under section 34; the making of, or refusal to make, a child arrangements order with respect to the living arrangements of a child who is the subject of a care order; or the variation or discharge, or refusal of an application to vary or discharge, an order of a kind mentioned in sub-paragraph (i) or (ii); the refusal of an application under section 39(4); or the making of, or refusal to make, an order under Part V; or on an application for the making or revocation of a placement order (within the meaning of section 21 of the Adoption and Children Act 2002); which are specified for the time being, for the purposes of this section, by rules of court. The proceedings which may be specified under subsection (6)(i) include (for example) proceedings for the making, varying or discharging of a section 8 order. For the purposes of subsection (6), a child arrangements order is one made with respect to the living arrangements of a child if the arrangements regulated by the order consist of, or include, arrangements which relate to either or both of the following— with whom the child is to live, and when the child is to live with any person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rules of court may make provision as to— the assistance which any officer of the Service or Welsh family proceedings officer may be required by the court to give to it; the consideration to be given by any officer of the Service or Welsh family proceedings officer , where an order of a specified kind has been made in the proceedings in question, as to whether to apply for the variation or discharge of the order; the participation of officers of the Service or Welsh family proceedings officers in reviews, of a kind specified in the rules, which are conducted by the court. Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of— any statement contained in a report made by an officer of the Service or a Welsh family proceedings officer who is appointed under this section for the purpose of the proceedings in question; and any evidence given in respect of the matters referred to in the report, in so far as the statement or evidence is, in the opinion of the court, relevant to the question which the court is considering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
In public court proceedings involving child welfare, the court must appoint a family proceedings officer (such as a Cafcass officer in England or a Welsh family proceedings officer) to safeguard the child's interests. This appointment is mandatory unless the court is satisfied that it is not necessary to protect the child.
The court may also appoint a solicitor specifically to represent the child. This can occur if no family proceedings officer has been appointed, if the court considers it to be in the child's best interests, or if the child has sufficient understanding to instruct a solicitor directly and wishes to do so.
This duty applies to "specified proceedings," which include applications for care or supervision orders, emergency protection orders under Part V, placement orders, and applications regarding contact or living arrangements for children who are subject to care orders.
When it applies
- The local authority applies for a care order, and the court appoints an officer of the Service to represent the child's best interests.
- A child in care proceedings has enough understanding of the case and wishes to instruct a solicitor directly rather than through a court-appointed officer.
- A court considers an application for an emergency protection order under Part V and determines whether independent representation for the child is required.
- An application is made to vary or discharge an existing supervision order or care order.
What this section does not say
- An officer's specific legal right to inspect local authority records relating to the child, which is covered under section 42.
- Routine private law family disputes between parents where no care order is in place and the court has not treated the case as specified proceedings.
- Financial provision or child maintenance arrangements following parental separation.
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This page reproduces the text of CA 1989 s. 41 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.