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Masthead Education - Child Protection

Tandem system in public law proceedings “working well”, MoJ review finds

The ‘tandem’ system of representation for children in public law cases works well and does not need major reform, a Ministry of Justice review has found.

Work by MoJ principal social researcher Amy Summerfield for a report The Representation of Children in Public Law Proceedings looked at whether the model of both a publicly-funded legal representative and a Cafcass guardian being present for cases was necessary.

The Family Justice Review of 2011 recognised the value of the tandem model, but raised concerns about the potential for duplication of work and suggested assessments should be made of whether, when, and how the legal representative and the guardian were required during proceedings. No systematic review of the tandem model had happened since then.

Ms Summerfield found: “The strength and value of the tandem model was recognised and strongly supported in this study; there was broad consensus that the model was working well and that overall, any reform of the current model, or consideration of an alternative model, was not required.”

She said the more proportionate approach advocated in 2011 had largely taken root with both a solicitor and a guardian present in 46% of cases.

“This suggests that one of the principles proposed in the [review] that both a solicitor and a guardian will not necessarily be required at the same time, and a guardian does not need to attend every hearing, has been widely implemented in practice,” the report said.

It said the respective roles and responsibilities of the guardian and the solicitor challenges “the assertion that a re-focusing of their roles may be required to avoid any duplication of work”.

The review did though find that solicitors were still being relied upon to facilitate effective case management, something questioned in the 2011 review.

Some judges interviewed for the report felt there was scope for a formalised assessment on a case-by-case basis as to whether a guardian was required to attend.

Others proposed ‘default’ practice could be that a guardian only attends a hearing if they have a contribution to make.

“It may be worth exploring whether the courts would find it beneficial to develop guidance for a formalised process to assess and direct the respective roles of the solicitor and the guardian,” the report said.

“This guidance could outline that the assessment must be continually reviewed by the judge, guardian and solicitor during proceedings, and include the option to redirect or excuse representatives as the case necessitates.”

Mark Smulian

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