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Tandem model of child representation in public law proceedings is working well, finds study

Guidance as to the respective roles of solicitor and guardian may be beneficial

Research published by the Ministry of Justice finds that the tandem model of child representation in public law proceedings is working well. It also concludes that, overall, any reform of the current model, or consideration of an alternative model, is not required.

The tandem model refers to the practice of children subject to public law cases being usually represented by both a publicly-funded legal representative and a Cafcass guardian. The research explored how this model is working in practice during public law proceedings, and whether any reforms to the model are feasible or appropriate to ensure the rights of the child are safeguarded, efficient judicial case management is supported and public resources are effectively allocated.

The more proportionate approach advocated in the Family Justice Review (FJR) is being adopted to a large extent – in 46% of hearings both a solicitor and a guardian were present, and in just over half (55%) the judiciary considered that both were necessary. This suggests that one of the principles proposed in the FJR that both a solicitor and a guardian will not necessarily be required at the same time, and a guardian does not need to attend every hearing, has been widely implemented in practice.

The findings suggest that both a solicitor and a guardian were required at substantive hearings; this was supported as hearings with both forms of representation present were more likely to lead to an order being made. Both were more likely to be deemed necessary at FHs where the guardian may have to give evidence as a witness and the judiciary felt it was important for the guardian to hear the evidence of other parties. This is with the exception of FHs for adoption where professionals assessed that representation was not required; likely to be because the case would be uncontested at this stage.

The assessment of when a guardian's input was required was described as a collaborative process, largely led by the guardian in consultation with the solicitor.

The research concludes that it may be worth exploring whether the courts would find it beneficial to develop guidance for a formalised process to assess and direct the respective roles of the solicitor and the guardian. This guidance could outline that the assessment must be continually reviewed by the judge, guardian and solicitor during proceedings, and include the option to redirect or excuse representatives as the case necessitates. However, the researchers add that since professionals within public law cases are already working to maximise resources to ensure efficient case progression, the introduction of any standardised process or formal guidance will need to be balanced against the need for professionals to continue to make flexible and informed decisions for the child.

For the report, click here.