A (Children)

A guardian ad litem or litigation friend should be removed where, in conducting litigation, the guardian takes or proposes a course manifestly contrary to the child’s best interests. Removal does not follow merely because another decision might have been preferable, or because the guardian’s responsible and considered decision is open to disagreement. Good faith and diligence are not decisive if the guardian’s conduct is plainly contrary to the child’s interests. A decision not to pursue an appeal, made after permission has been granted and without consideration from the opposing parties, is not a compromise requiring court approval.

The Court of Appeal had previously dismissed the parents’ appeal concerning the proposed separation of conjoined twins and granted permission for an appeal to the House of Lords. The parents then decided not to appeal, and the Official Solicitor, acting for one child, also decided not to pursue an appeal after considering the prospects of success and the parents’ position.

Mr Quintavalle applied to remove the Official Solicitor as guardian ad litem and to be appointed instead, alleging that the Official Solicitor had improperly failed to appeal. The President of the Family Division dismissed the application. Mr Quintavalle sought permission to appeal, raising four grounds concerning the legal test for removal, the Official Solicitor’s approach, the prospects and public importance of the proposed appeal, and the need for court approval.

1. Application refused. The Court of Appeal dismissed the application for permission to appeal and ordered the First and Fourth Respondents’ costs, subject to detailed assessment.
2. The court did not need to formulate a comprehensive test for removing a guardian ad litem. Rule 4.10(9) of the Family Proceedings Rules 1991 and rule 21.7(1) of the Civil Procedure Rules imposed no specified limit on the power to terminate the appointment. In the relevant situation, removal was justified where the guardian had taken, or was about to take, a course of action manifestly contrary to the child’s best interests.
3. A guardian could be removed despite good faith or diligence if the conduct was manifestly contrary to those interests. Conversely, a responsible and considered decision was not a manifest failure merely because another person might have reached a different conclusion. The President’s reference to falling below the expected standard was understood in that context.
4. The Official Solicitor’s reference to his broader responsibilities did not demonstrate a failure to act single-mindedly for Mary. His position was that any development of the law should be cautious and principled, which was consistent with his duty.
5. The material question was whether the decision not to pursue the House of Lords appeal amounted to a manifest failure of duty. The Official Solicitor had considered the prospects of success, the parents’ decision not to appeal and their wishes. Those matters were relevant, though the parents’ wishes were not determinative of the lawfulness of the proposed operation. The court found no prospect of establishing a failure of duty.
6. The proposed appeal was not a compromise. A decision not to appeal, where permission had been granted on the basis that the potential appellant required time to decide and no consideration had moved from the respondents, did not require court approval. The Official Solicitor could have sought directions, but could not be criticised for not doing so.

• Court of Appeal (Civil Division): The court had earlier dismissed the parents’ appeal from Johnson J’s order and granted permission to appeal to the House of Lords. On the present application, it dismissed the challenge to the President of the Family Division’s order and refused permission to appeal.