A short while ago the Jersey Evening Post reported about the high cost to the Island of bringing over Guardian's from the NSPCC in the UK. It reported that there was one case. There are currently 3 cases that I know of using the NSPCC. They are bringing over these people to act as Guardian Ad Litems. This is a term used for the representation of a child in Court Proceedings by a Guardian who then also has to have local council. They are there supposedly employed to act on the behalf of the child in their best interests. Their role is ended on the conclusion of proceedings. These Guardian Ad Litems are not to be confused with the role of a Guardian who has care and control of a child.
One question is why are we not using local staff to fulfill this position, we have social workers here, and that is the profession of these guardians. Why are we importing these people at great cost to the tax payer. I can total approximately 20 visits I know of, just how much does a visit cost?
I also want to know why we are using these Guardians who operate with knowledge of UK law and not Jersey Law, and are therefore not from the same jurisdiction. How can a person from England claim after a couple of hours with a child and maybe the odd phonecall, that they know what is in their best interests?
The Guardian we have had the pleasure of a brief aquaintance with has not conveyed my son's wishes. In fact I have a copy of email correspondence in which the person writing the email states that all the 'guardian' wants to do is discredit me in Court.
The function of a Guardian Ad Litem in many cases in simply a sham, a device used to prevent the Court hearing the true wishes of the child.
If you are ever unfortunate to be in the position that you wish your child to attend court in care proceedings, below is a draft letter you can use, it would be up to you if you decided to appeal when your request is turned down as the opposing parties will object to this:
DRAFT LETTER:
I wish my child to come to court to testify. Children suffer far more from a perhaps permanent separation from their families than from a few hours in court. Children who WANT to come to court to tell the truth will suffer far more from being forcibly prevented from doing this than from being allowed to do so. There cannot be a fair hearing if my principal witnesses are prevented from giving evidence, and therefore I shall appeal if this happens on the grounds that my human rights have been infringed.
Convention on the Rights of the Child
Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989
entry into force 2 September 1990, in accordance with article 49
Article 12 of the United Nations convention on children's rights gives a parent the legal right to call their children in judicial proceedings as quoted below.
Article 12 (child's right to participate in decision making)
1. Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Any claim that this clause is satisfied by the appointment of a "guardian" or "independent solicitor" to represent the children's views by stating in court an opinion diametrically opposed to that of the children concerned should be exposed; this is simply a device to keep the children's true opinions and desires from reaching the court and as such a clear breach of the spirit of the convention.
In Mabon v. Mabon [2005] 2 FLR 1011, the Court of Appeal considered Rule 9.2A and the older line of authorities in the light of Article 12 of the United Nations Convention on the Rights of the Child 1989, and Article 8 of the ECHR. The court acknowledged the greater appreciation and weight which must now be attached to the child’s autonomy and consequential right to participate fully in the decision-making process that fundamentally affects his life. It held that
"in the case of articulate teenagers…. the right to freedom of expression and participation outweighed the paternalistic judgment of welfare."[paragraph 28].
However, if direct participation would lead to a risk of harm that the child was incapable of comprehending, then a judge could find that sufficient understanding had not been demonstrated. Judges must equally be alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings [para.29].
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