Too many guardians

The word "Guardian" frequently crops up in cases concerning children. But unfortunately, in law, it has a variety of different meanings. I say "unfortunately" because it is a good word which carries with it notions of protection - but the numerous different meanings the word carries can lead to misunderstanding and even panic. Let me illustrate.


Most lay people would think of the word as referring to the person whom a parent appoints to look after a child either when the parent is absent for an extended period or in the event of the parent's death. Like the term "common law wife" (which is not known to the common law), the term "guardian" in circumstances where the parent is alive and, say, abroad and has appointed someone to look after a child is a misnomer. Anyone with parental responsibility may arrange for some or all of it to be met by one or more persons acting on their behalf (section 3(9) of the Children Act 1989. A school teacher or a babysitter are examples; the Latin term "in loco parentis" is the correct way of referring to such persons acting in that capacity. But such a person does not become, in law, a guardian. On the other hand, a parent may appoint another individual to be the child's guardian in the event of that parent's death: section 5(3) of the Children Act 1989. Disputes sometimes arise if, say, one parent separated from the other appoints a guardian, then dies; and then the surviving parent disagrees with the appointment. But any such dispute would be resolved by an application to the court for appointment as a guardian or for a "child arrangements order" where the child's best interests would be of greatest importance.


Then there are special guardians. These are a relatively new concept, created by the Adoption and Children Act 2002. Special guardianship orders give the special guardian (or special guardians - a child can have more than one) parental responsibility for the child concerned. They are intended to provide permanence and security for those children for whom adoption is not suitable but who cannot live with their birth parents. The basic legal links between the child and his birth family are preserved. But importantly a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child, apart from another special guardian: see section 14C(1)(b) of the Children Act 1989.


Next, children's guardians: in the term, "children" is always plural even if there is only one child for whom the children's guardian has been appointed. Until quite recently, the children's guardian was known as the "guardian ad litem" but this term was modernised. Children's guardians are appointed in various sets of proceedings such as care proceedings when, often, the state in the form of the local authority is often seeking to remove a child from the care of the birth parents. They are the eyes, ears and voice of the child in court, attending court hearings and providing an independent view. In my experience, while children's guardians regularly agree with the position taken by the local authority, on occasions they do not: and their view is often decisive. Courts do not have to follow the view of the children's guardian but they are required to give adequate reasons if they do not.


In cases where the parents (and/or extended family) are in dispute in relation to a child's welfare but the local authority has not brought any applications, it is rare to have a children's guardian. But the court may do so in cases which involve an issue of significant difficulty.


Then there is the guardian of the estate of a child...


Too many Guardians? I think so. I have on occasions needed to spend some time explaining to an anxious client that the "children's guardian" is NOT somebody with whom the child will be living. I think the term "special guardian" is awkward (does it follow that any other type of guardian is less than special?) and the term is still not understood outside legal circles. I have been toying with new titles and, of course, new difficulties are immediately thrown up, but here are my suggestions:


A guardian appointed by a parent: a guardian.
A children's guardian: a child's welfare officer (return to an old term).
A special guardian: a conservator (used in some other jurisdictions).
The guardian of the estate of a child: a child's trustee.