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Children Act 1989, Section 41 — Representation of Child (Children's Guardian)

Jurisdiction: England & Wales · Citation: Children Act 1989 (c. 41), section 41 · Authoritative source: legislation.gov.uk — s.41

The statutory basis for the "tandem model" — separate appointment of a Children's Guardian (CAFCASS officer) and a solicitor for the child in specified proceedings. In parental-alienation cases, the Guardian's independent welfare assessment is the principal mechanism by which the court receives evidence about the child's true wishes versus their stated, potentially-influenced wishes.

Verbatim text (current consolidated)

41 Representation of child.

(1) For 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.

(2) The officer of the Service or Welsh family proceedings officer shall—

(a) be appointed in accordance with rules of court; and

(b) be under a duty to safeguard the interests of the child in the manner prescribed by such rules.

(3) Where—

(a) the child concerned is not represented by a solicitor; and

(b) any of the conditions mentioned in subsection (4) is satisfied,

the court may appoint a solicitor to represent him.

(4) The conditions are that—

(a) no officer of the Service or Welsh family proceedings officer has been appointed for the child;

(b) 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.

(5) Any solicitor appointed under or by virtue of this section shall be appointed, and shall represent the child, in accordance with rules of court.

(6) In this section "specified proceedings" means any proceedings—

(a) on an application for a care order or supervision order;

(b) 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;

(d) on an application under section 39(4);

(e) in which the court is considering whether to make a residence order with respect to a child who is the subject of a care order;

(f) with respect to contact between a child who is the subject of a care order and any other person;

(g) under Part V;

(h) on an appeal against—

(i) the making of, or refusal to make, a care order, supervision order or any order under section 34;

(ii) the making of, or refusal to make, a residence order with respect to a child who is the subject of a care order; or

(iii) 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);

(hh) 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);

(i) specified for the time being, for the purposes of this section, by rules of court.

(6A) 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.

(6B) In subsection (6)(e), (f) and (h)(ii) "residence order" means a child arrangements order which regulates arrangements relating to either or both of the following—

(a) with whom a child is to live, and

(b) when a child is to live with any person.

(10) Rules of court may make provision as to—

(a) the assistance which any officer of the Service or Welsh family proceedings officer may be required by the court to give to it;

(b) 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.

(11) Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of—

(a) 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 child concerned; and

(b) 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.

Why this matters for PA

  • The "tandem model" — Guardian + child's solicitor — is the structural counter-balance to alienating-parent influence. The Guardian conducts an independent welfare assessment, and where the child's stated wishes diverge from the Guardian's assessment of the child's welfare, the court has two voices to weigh: the Guardian's professional judgment and the child's instructed solicitor presenting the child's expressed wishes.
  • s.41(11) expressly permits the court to take account of the Guardian's report and underlying evidence — overriding hearsay rules — which is critical when the Guardian needs to convey what an alienated child has said outside the courtroom about the rejected parent.
  • CAFCASS practice guidance on alienation (Cafcass England 2023 Re K and the 2024 Working with Children Affected by Parental Alienation framework) operates under s.41(2)(b)'s "duty to safeguard" — the Guardian is the conduit through which alienation patterns are evidenced to the court.
  • In PA cases where the alienating parent has captured the child's expressed wishes (a "Rule 16.4" / Guardian-led case), the court typically relies on the Guardian's welfare report rather than the child's instructed solicitor.

Sources & authoritative references

Referenced in this page:

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