London Borough of Haringey v Musa

Where proceedings concern the variation of a contact order or permission to change a child’s surname, the court must appoint a children’s guardian unless, after proper consideration, it is satisfied that representation is unnecessary to safeguard the child’s interests. That exception requires a reasoned decision.

Children whose welfare and family-life rights are directly affected by an application may be made parties. Where the interests of different sibling groups may conflict, separate representation and separate guardians may be essential. The court should also ensure that the timetable allows the guardians to investigate the children’s circumstances and the quality and significance of existing contact.

The local authority applied in relation to two young children who were subject to placement orders and were intended to be placed together for adoption. It sought disclosure of documents, permission to change their surnames and forenames, and termination of direct contact between them and their five older siblings.

The children had previously been subject to an order providing for reasonable direct contact with their siblings. The proposed applications potentially affected all seven children, including their welfare and family life under Article 8 of the European Convention on Human Rights. The issue before the court was whether the applications could properly proceed without separate guardians representing the two younger children and the five older children.

1. Guardian for the two younger children. The applications concerning variation of contact and permission to change a surname were proceedings to which Part 14 applied. Under rule 16.3(1), the court had to appoint a children’s guardian unless it was satisfied that appointment was unnecessary to safeguard the child’s interests. No such assessment had previously been made. Given the seriousness of the proposed changes to the children’s names and the possible termination of important sibling contact, separate guardianship was essential.
2. Representation of the five older children. The proposed termination of contact directly affected the older children’s welfare and their family life with their younger siblings. Under rule 16.2, they should be made parties because this was in their best interests and was necessary to protect their interests. Rule 16.4 then required the appointment of a children’s guardian for them.
3. Separate guardians. There was an obvious potential conflict between the interests of the five older children and those of the two younger children. The same guardian could not adequately represent both groups. The court therefore proposed the appointment of one guardian for the younger children and a separate guardian from the CAFCASS High Court team for the older children.
4. Directions. The substantive applications were not finally determined. A further directions hearing was fixed for 11 April 2014 so that the guardians, the parties and the court could agree a realistic timetable for investigation, including consideration of the children and their existing contact. The parents could seek production orders if they wished to attend; otherwise the hearing could proceed in their absence. The Nigerian High Commission was given liberty to make any formal application in the prescribed manner.

First-instance directions decision. No earlier appellate decision is stated in the judgment.