The aims of the organisation are to promote and enhance the quality of practice of those concerned with the independent representation of children’s interests before the courts, throughout England and Wales. These aims include establishing an ethical base for the work of guardians ad litem, to encourage the setting of good standards, and to promote training and education of guardians. It is also concerned with the distribution of information, to promote a communications network between guardian panels and to provide a forum for the co-operation with other organisations and persons engaged in the promotion of the welfare of children. The membership currently comprises 577 full members, and 380 associate members, most of whom are Children Panel solicitors.

NAGALRO has always held the view that for the Guardian Service to be organisationally linked with local authority Social Services Departments, which are parties to the case, is ethically questionable and must give rise to a public perception that guardians are not truly independent. The search for an organisationally independent base from which to act has therefore been a consistent pre-occupation. On a more practical note, because the service was devolved at a local level via many guardian panels, there is an inefficient proliferation and inconsistency in procedures and considerable inequalities with regard to conditions of service.

We have also been aware that there may be some logic in being more closely allied with other services that support the family jurisdiction, such as the Court Welfare Service, the Official Solicitor’s Department and possibly the mediation agencies. Indeed, the social policy research to date, conducted principally by Mervyn Murch and his colleagues, supports a case for merging the civil work of the Probation Service with the work of the guardian panels.

When Geoffrey Hoon, MP, Parliamentary Secretary to the Lord Chancellor, came to address NAGALRO’s Conference in November 1997, he spoke of the fragmentation of services caused by the division of responsibilities across government departments, and gave us some indication that consideration of some form of unified service might be in prospect.

As a first step, in January 1998, NAGALRO sent out a brief paper to its members for their comment, outlining the principles that we should like to see embodied in a new service. On the basis of responses received and by this time knowing that there was to be a Court Services Working Group to consider the question of a unified service, a more detailed discussion paper was produced in March 1998. In early May, the paper was revised to include a section on children’s representation. Throughout the year, therefore, we have been receiving comments and ideas from our members on all aspects of a future re-organisation, and in recent weeks we have received their responses to the Consultation Paper itself.

Secondary and supportive aims should be the provision of professional/expert advice to the court (public and private law) and information, advice and support to families at the outset of family proceedings so that only those cases where litigation is necessary and appropriate are pursued through the courts (private law). In public law, the guardian currently has an important case management function which we would like to see enhanced.

The new service should take on the full range of functions of the current court welfare and guardian service. We are of the view that the children’s work of Official Solicitor should be transferred to the new service (see below).

The service should have the capacity to take on new responsibilities provided these fall within the overall aims. This would include functions under the Family Law Act 1996, and could include a remit to provide information to children so that they are helped to make applications to court and improve their access and their voice.

It is fundamental that the new service is not a parallel organisation to Social Services. All services to be provided, both relating to public and private proceedings, should be geared to the court process. It follows that the agency should play no role after orders have been made and proceedings completed. We would therefore suggest that the casework role is taken out of the service, e.g. operation of family assistance orders and supervision of contact under section 8 of the Children Act 1989. Such tasks could be allocated to a separate organisation which is related, (the embryonic contact centres?) but whose staff do not take on the functions of a court welfare officer or guardian ad litem.

Appointment of staff on employed and service contractor basis, buying in staff for regional appraisal, performance review and appointment procedures.

Responsibility for buildings, support staff and facilities to maintain service regionally.

Supervision of local administrative staff re allocation and efficient use of professional resources.

Regional approval and payment of claims.

Main task local allocation; maintenance of local office to support professional staff. Interviewing rooms suitable for children and room designated for professional staff.

Administrative/Support Services only.

NAGALRO would prefer the service to be arms length from central government in the form of a Non Departmental Public Body. Accountability to a new Minister for Children is the ideal for many members, but within the current framework, the Department of Health is seen as preferable for its links with social policy and child welfare issues. However, we also recognise the positive links a new service could have with the LCD. Staff within the new service will be officers of the Court, linked to the Court services.

It is only in public law that the child is party to the proceedings and this has a direct bearing on the role of the guardian ad litem in such cases. The guardian ad litem is personally named in law and personally accountable for the investigation and recommendation in a way that the Court Welfare Officer is not. The position of the Official Solicitor is different again; his caseworkers are not professionally trained and do not act as expert witnesses themselves. They report their findings to the lawyers in the Department, who take the decisions and put a corporate recommendation to the court.

The Manual of Practice Guidance for Guardians ad litem and Reporting Officers (DH 1992) states: "When acting as guardians ad litem, their work in relation to children is not subject to the professional scrutiny and direction of the panel manager. This applies to all panel members, including probation officers ...". It is therefore the role itself that makes line management inappropriate; this holds regardless of organisation change.

Question 7 is really about professional autonomy, accountability and the role of "management". NAGALRO is of the view that the existing role of the guardian ad litem as laid down by statute is not negotiable. The court rules embody a concept of the guardian ad litem as expert witness for the child, accountable to the court for the investigations done, the assessment of evidence, the professional opinion reached and the recommendation to the court; these are part of the same continuum. Additionally, the guardian ad litem is open to cross examination in court. It is absolutely essential that the evidence s/he gives is given on the basis of his/her own work. It follows from this that there is no place for "trainees" or for a career structure that reflects degrees of seniority; everyone should have an equal professional status. In our view, it is this arrangement that gives us credibility with families, judges and magistrates. To an extent, the process is recognised in the consultation paper "as an important feature, which, in broad terms strengthens the "public accountability" of those working in these services". (Para 3.14).

If the role of the guardian ad litem is to remain as currently set out in the Court Rules as we believe it should, we do not see the need for a special legal status similar to that of an approved social worker under the mental health legislation.

We endorse the view that independence of action has to be balanced by accountability, but believe that the guardian’s role (and we cannot see why this should not apply to court welfare officers as well) can only be supported by a non hierarchical management structure in which the professional’s first responsibility is for meeting the standards of his/her profession rather than the procedural demands of the organisation.

Measures taken to ensure quality of professional practice could include:

Rigorous recruitment of professional personnel with substantial relevant post-qualifying experience (minimum 5 years)

Initial accreditation

Evidence of continuing professional development

Evidence of adherence to National Standards via regular appraisal

Opportunity for regular consultation

Day to day peer appraisal (already practised by some Court Welfare Officers) where matters such as case planning, over/under investigating, child-focused/time focused work could receive better scrutiny than at present.

In our view, the essential roles of "management" are:

To manage a budget

To deal with case allocation

To administer professional work (i.e. to ensure the smooth running of the measures listed above)

To deploy staff appropriately to the various roles within the new agency according to the training and skills required

To deal with personnel issues and staff care

Whilst accepting the need for overall management of a budget, we do not see the role of management as set out at para 3.15: "to set overall limits where necessary, including those related to case costs or to the extent of enquiries and associated tasks undertaken by practitioners." In increasingly complex public law proceedings, we feel these are professional issues and that the freedom needed in public law work and guaranteed by the Cornwall case should hold across any organisational change. Sensitivity to the need to work cost effectively is itself a professional matter and should be open to professional scrutiny as suggested above. In-built auditing of case files could be another way to monitor case costs.

We should record, however, that there has been no support for the Home Office, or more particularly for this agency to be a part - even a discreet part - of the Probation Service. The main reason for this that we feel the children and families with whom we become professionally involved should not be stigmatised, as would be inevitable if the new agency were associated with an organisation with responsibilities predominantly related to crime.

Although there was some support for the LCD, to reflect our role as officers to the court, heed was also taken that a service that provides advice and recommendations to the courts should not be part of the same organisation that manages the courts. (This is similar, in a way, to the problem that we have with the SSDs). The preference of most members was for the Department of Health. The reasons include:

For guardians and court welfare officers who are or may become self-employed special working agreements will have to be drawn up to ensure that there is a ready supply of a flexible work force.

The service should be able to buy in other expertise such as appraisers, trainers, mentors/consultants for new members of the workforce, investigators of complaints, advisers on recruitment, development of information technology etc. All such personnel would be required to be on an approved agency list, so that the services provided would conform with public service protocols and appropriate standards.

Those performing a court welfare role may need legal advice. This should be obtained from private law firms which have been approved by the new agency.

Similarly the purchase of expert opinion should be part of the function of the service. This would follow from court directions that experts are needed in a case. If the service has a fixed budget then allowance must be made for the fluctuations of the need for expert advice.

There is considerable anxiety among self-employed guardians that their self-employed status may be sustained only during the transitional period. What is sought, therefore, is a statement of intent that a new service will not have the discretion but will accommodate a mixed economy. In other words, this needs to be debated and decided now, not later.

Self employment is attractive to practitioners, who have appreciated having responsibility to organise their work and has allowed them to create a portfolio of jobs to include, for example, teaching and research, if they wish. Self-employment provides a flexible response to fluctuations in demand and avoidance of costly overheads associated with employed people, especially if office based. By being attractive to people presently unavailable to work full time in main stream social work, it also provides a larger pool from which to recruit guardians. It is not difficult to see a comparatively cost-effective return from people who are paid strictly on the basis of the work that they do, the working day patterns of employed people being more likely to encompass non-working activities.

Basic to recruitment, is the need to establish minimal entry qualifications, i.e. social work training, appropriate experience of work with children and families, knowledge of the law. Some of our members are of the view that substantial experience of working within a social services department is a necessary pre-requisite for guardian work, in addition to the need for further specialist training. There is a commensurate acknowledgement from guardians ad litem that they lack the knowledge and expertise to take on court welfare work. There is no specific question in the consultation document about training but it will be a major aspect of a new organisation and one that is very important if all members of the agency are to be equipped to take on all roles at some future stage. The question of whether there should a one or two path entry to the new service - possibly with different entry requirements - is one that also needs to be addressed.

The current situation, where there is already "mixed economy" of salaried and self employed guardians within the guardian service, and salaried workers within the Court Welfare Service also presents some problems. With rates of pay for self-employed workers currently being so disparate, and with all the complications of on-costs, it will be a demanding task to determine a nationally acceptable rate of pay that is linked with a nationally acceptable salary scale. There is also a view among guardians ad litem that there should be different rates of pay for different tasks.

Professional consultation, and appraisal which would take place regionally should also include independent practitioners from outside the local area.

It is right, then that these children should have party status, which reflects the particularity of their position and reflects the real or potential conflict of interest between the child, the parent, and the state. We are pleased to see that "The Government has no intention of removing the party status of the child in public law cases." (Para 4.3).

It is our understanding that party status confers the right to legal representation. We note that no other parties are being asked to limit the taking up of this right. We are of the view that children should continue to be represented by a guardian ad litem and a solicitor in public law proceedings for the following reasons:

because of the gravity of the issues for the child

the actual or potential legal complexity

the essentially adversarial nature of the proceedings where children need parity of status with other parties; they would be disadvantaged if they were not

because potential conflicts of interest between the child, the parents and the state need to be acknowledged

it is difficult to decide in advance which cases can do without legal representation. Cases are dynamic and can change throughout the course of the proceedings.

even if the order is uncontested, issues can arise around the care plan, and there may be other legal issues, such as the correct drafting of documents

separate representation is an implied requirement of the U.N. Convention on the Rights of the Child.

We can, however, support some changes to the approach to the child’s situation in private law. In all cases involving disputes over residence/contact we should like to see a more child-centred approach and an opportunity for children to express their views through a neutral person. This could probably be achieved very simply by court welfare officers, in their day to day practice, making sure that they speak to children on their own, unless there are very good reasons not to. (We acknowledge that many court welfare officers do this already). We should also like to see children made more aware of their rights/opportunities during the process of family breakdown.

It is the experience of NAGALRO members, currently appointed on occasions in private law proceedings as expert witness for the child, that some of the more complex and serious situations for children as outlined in the consultation paper at para 4.11 do not require full party status for the child and legal representation. Sometimes welfare representation, similar to the guardian ad litem role in public law proceedings, which focuses more directly on investigating and representing the child’s case, is sufficient. Perhaps the approach could be conceptualised as a sliding scale in which the court welfare officer is given the facility within the court rules to consider the need for separate representation and/or party status at any stage. The case could then be referred back to the court and Directions given accordingly.

Such solicitors have undergone specialist accreditation

The system provides a choice for the guardian as part of his/her welfare responsibility to the child, in terms of the child’s race, culture, sex, background etc.

It is a personal appointment, the solicitor providing continuity of representation throughout the course of the case.

The solicitor is pro-active throughout the course of the case, taking necessary initiatives as well as being instructed

The system provides independent legal representation: it is as important for the solicitor as it is for the guardian not to be bound by departmental policy.

On a final note, the whole of this section needs to be considered in the context of the Lord Chancellor’s concerns about the cost of Legal Aid.

We have not as yet had time to consider fully the implications of franchising for legal aid work, or the proposals for fixed fees for the representation of children as set out in "Reforming the Civil Advice and Assistance Scheme" which could be profound.