Where there is a dispute about a child, such as how long they spend time with a parent or where they should live, the court has the power to make a child a party to private law proceedings under rule 16.4 of the Family Procedure Rules.

Making the child a party to the proceedings is a step that will be taken only in cases involving an issue of significant difficulty and consequently will only occur in a small number of cases. This may occur where the child has a standpoint or interest which is different with or incapable of being represented by any of the adult parties, or where there is a difficult dispute over where the child lives or who they spend time with or where the child may be suffering harm associated with the dispute.

Once a child is made party to the proceedings under the 16.4 rule, a Guardian from CAFCASS (Children and Family Court Advisory & Support Service) will be appointed by the court. Children's Guardians are qualified in social work and are expertly trained and experienced in working with children. The Guardian’s primary role is to ensure the wishes and feelings of the child are heard, and they will then ensure their best interests are protected. The Guardian is completely independent from any other party and the court which ensures the child has an independent voice throughout the proceedings when there may be conflict or disagreement between other parties.

The Guardian will be represented by a solicitor, known as the children's solicitor, throughout the proceedings. Legal aid will be applied for on the child’s behalf. In this type of case legal aid would be granted to fund the children’s solicitor’s involvement.

Once appointed, the Guardian will spend time with the child, family and other professionals involved with the family to gain an understanding of the situation and to determine what is in the best interests of the child. These professionals may include the child’s teacher, health visitor and social worker (if a social worker is involved.)

A report is then prepared for the court by the Guardian, setting out their recommendations of what is in the child’s best interests. This report is then shared with the court and the parties. The court will then determine the outcome and what is in the best interests of the child after looking at all the evidence in the case.

Should you require any legal advice about a family law case, then you can find a regulated solicitor for free at Search4Legal.co.uk. Alternatively, you might be interested in reading some of our other guidance on family law topics, such as “Top 10 things to know before attending a family court hearing” or “2022 brings significant change to divorce law.”