The Court of Appeal allowed an appeal by the minor, C, and discharged an order made by Mr Justice Thorpe insofar as it related to wardship. C was born in 1979, and she and her sister lived with her natural mother after their parents separated. In 1986, C and her sister were placed on a long-term foster placement with Mr and Mrs T, who in 1987 formally adopted them.
C, who had had some contact with her maternal grandparents and an aunt, who lived together, wished to live with them. She consulted a solicitor, who was satisfied that she was capable of giving him instructions. She obtained legal aid for an application to the county court for a residence order under section 8 of the Children Act 1989 directing her to reside with her aunt. Leave for the application was granted.
Subsequently the application was ordered to proceed in the High Court. On an application to Mr Justice Thorpe for further directions, the adoptive parents indicated they wished to start wardship proceedings. Mr Justice Thorpe directed that wardship proceedings should be confirmed with the authority, the aunt and C joined as defendants, that the Official Solicitor should appear on C's behalf as her guardian ad litem and that C's application for a residence order should be consolidated with the wardship proceedings.
Judith Parker QC, and Roderic Wood QC (David Burrows, Bristol) for C; E James Holman QC (Official Solicitor) for the guardian ad litem; Mark Evans (Winterbottoms, Stroud) for the adoptive parents.
LORD JUSTICE WAITE said that rules enacted under the Children Act authorised a minor to bring or defend certain family proceedings without the intervention of a next friend or guardian ad litem: rule 9.2A of the Family Proceedings Rules 1991. In the majority of private law cases, the child's guardian ad litem would be the Official Solicitor who owed a divided loyalty: to the child whose views he must fully and fairly represent, and to the court, which it was his duty to assist in achieving the paramount objective of promoting the child's best interests.
Though wardship survived the Children Act as an independent jurisdiction, it was now subject to rule 9.2(a), with the result that minors might engage in wardship proceedings without a guardian ad litem. Provided the conditions of rule 9.2(A)(1) were satisfied, C could bring or defend wardship proceedings without a guardian ad litem and the court would have no power to impose one on her against her will.
If the judge believed wardship proceedings provided a means of requiring C to accept a guardian ad litem or secure an advantage not available in ordinary family proceedings under Part II of the Act, he was mistaken. There was no factor in the circumstances of the case that would justify giving C the status - an exceptional status under the modern law as it must now be applied - of a ward of court.
Sub-paragraph (1)(b)(i) of rule 9.2(A) was to be construed according to the whole tenor of the Act and its subsidiary legislation, and must be taken to reserve to the court the ultimate right to decide whether a child, who came before it as a party without a next friend or guardian, had the necessary ability to instruct his solicitor.
The option of involving the Official Solicitor as an amicus curiae was always available, but his services in that capacity should be resorted to sparingly, and in the knowledge that he was unlikely to be able to assist the court to the same extent as in cases where was involved as next friend or guardian ad litem.
Accordingly the proceedings would continued as an application by C for a residence order.
LORD JUSTICE STAUGHTON agreed and SIR THOMAS BINGHAM MR concurred.