Children Act 1989, section 41

Representation of child

Part IV Care and Supervision

(1)or the purpose of any specified proceedings, the court shall appoint [F586an officer of the ServiceF586][F587 or a Welsh family proceedings officerF587] for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.

(2)The [F586officer of the ServiceF586][F588 or Welsh family proceedings officerF588] shall—

(a)be appointed in accordance with rules of court; and

(b)be under a duty to safeguard the interests of the child in the manner prescribed by such rules.

(3)Where—

(a)the child concerned is not represented by a solicitor; and

(b)any of the conditions mentioned in subsection (4) is satisfied,

the court may appoint a solicitor to represent him.

(4)The conditions are that—

(a)no [F586officer of the ServiceF586][F588 or Welsh family proceedings officerF588] has been appointed for the child;

(b)the child has sufficient understanding to instruct a solicitor and wishes to do so;

(c)it appears to the court that it would be in the child’s best interests for him to be represented by a solicitor.

(5)Any solicitor appointed under or by virtue of this section shall be appointed, and shall represent the child, in accordance with rules of court.

(6) In this section “specified proceedings” means any proceedings—

(a)on an application for a care order or supervision order;

(b)in which the court has given a direction under section 37(1) and has made, or is considering whether to make, an interim care order;

(c)on an application for the discharge of a care order or the variation or discharge of a supervision order;

(d)on an application under section 39(4);

(e)in which the court is considering whether to make a [F589child arrangements order with respect to the living arrangements ofF589] a child who is the subject of a care order;

(f)with respect to contact between a child who is the subject of a care order and any other person;

(g)under Part V;

(h)on an appeal against—

(i)the making of, or refusal to make, a care order, supervision order or any order under section 34;

(ii)the making of, or refusal to make, a [F590child arrangements order with respect to the living arrangements ofF590] a child who is the subject of a care order; or

(iii)the variation or discharge, or refusal of an application to vary or discharge, an order of a kind mentioned in sub-paragraph (i) or (ii);

(iv)the refusal of an application under section 39(4); or

(v)the making of, or refusal to make, an order under Part V; or

[F591 (hh)on an application for the making or revocation of a placement order (within the meaning of section 21 of the Adoption and Children Act 2002);F591]

(i)which are specified for the time being, for the purposes of this section, by rules of court.

[F592 (6A)The proceedings which may be specified under subsection (6)(i) include (for example) proceedings for the making, varying or discharging of a section 8 order.F592]

[F593 (6B)For the purposes of subsection (6), a child arrangements order is one made with respect to the living arrangements of a child if the arrangements regulated by the order consist of, or include, arrangements which relate to either or both of the following—

(a)with whom the child is to live, and

(b)when the child is to live with any person.F593]

F594(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F594(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F594(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)Rules of court may make provision as to—

(a)the assistance which any [F586officer of the ServiceF586][F595 or Welsh family proceedings officerF595] may be required by the court to give to it;

(b)the consideration to be given by any [F586officer of the ServiceF586][F595 or Welsh family proceedings officerF595] , where an order of a specified kind has been made in the proceedings in question, as to whether to apply for the variation or discharge of the order;

(c)the participation of [F586officers of the ServiceF586][F596 or Welsh family proceedings officersF596] in reviews, of a kind specified in the rules, which are conducted by the court.

(11)Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of—

(a)any statement contained in a report made by [F586an officer of the ServiceF586][F597 or a Welsh family proceedings officerF597] who is appointed under this section for the purpose of the proceedings in question; and

(b)any evidence given in respect of the matters referred to in the report,

in so far as the statement or evidence is, in the opinion of the court, relevant to the question which the court is considering.

F594(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Definitions used in section 41 12

the court

(7) For the purposes of this Act “the court” means the High Court or the family court .

Defined in s.92(7) · see it in the full Act
officer of the Service

“officer of the Service” has the same meaning as in the Criminal Justice and Court Services Act 2000 ;

Defined in s.105(1) · see it in the full Act
Welsh family proceedings officer

“Welsh family proceedings officer” has the meaning given by section 35 of the Children Act 2004 .

Defined in s.105(1) · see it in the full Act
child

16 (1) In this Schedule “child” includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person.

Defined in Sch.1 para.16(1) · see it in the full Act

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;

Defined in s.105(1) · see it in the full Act
the order

(a) an order under paragraph 1(2)(a) or (b) for the making or securing of periodical payments in favour of more than one child (“the order") is in force;

Defined in Sch.1 para.6(9) · see it in the full Act
prescribed

“prescribed” means prescribed by regulations made under this Act;

Defined in s.105(1) · see it in the full Act
a care order

“a care order” means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and

Defined in s.31(11) · see it in the full Act
care order

“care order” has the meaning given by section 31(11) and also includes any order which by or under any enactment has the effect of, or is deemed to be, a care order for the purposes of this Act; and any reference to a child who is in the care of an authority is a reference to a child who is in their care by virtue of a care order;

Defined in s.105(1) · see it in the full Act
a supervision order

“a supervision order” means an order under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38.

Defined in s.31(11) · see it in the full Act
supervision order

“supervision order” has the meaning given by section 31(11);

Defined in s.105(1) · see it in the full Act
child arrangements order

"child arrangements order " means an order regulating arrangements relating to any of the following—

(a)

with whom a child is to live, spend time or otherwise have contact, and

(b)

when a child is to live, spend time or otherwise have contact with any person;

Defined in s.8(1) · see it in the full Act

“child arrangements order” has the meaning given by section 8(1);

Defined in s.105(1) · see it in the full Act
service

“service”, in relation to any provision made under Part III, includes any facility;

Defined in s.105(1) · see it in the full Act

Cases considering section 41 31

E (Section 37 Direction, The Children Act 1989)

[2025] EWCA Civ 470 · 16 April 2025Interprets

Proceedings following a section 37 direction are specified proceedings only where an interim care order has been made or is under consideration. An interim supervision order did not authorise appointment of a guardian for the three children. (see para [91])

G and H (Leave to revoke placement order), Re

[2023] EWCA Civ 768 · 6 July 2023Interprets

Interprets the guardian provision as requiring appointment for specified proceedings unless appointment is unnecessary to safeguard the child’s interests. The court contrasted this qualified rule with rule 16.4(1)(b). (see paras [13], [40]) Interprets the definition of specified proceedings as excluding the preliminary application for leave to revoke a placement order. (see paras [13], [36], [40]) Confirms that proceedings on the substantive making or revocation of a placement order are specified proceedings, while the leave application is distinct. (see paras [13], [36]) Confirms that rules of court can specify additional proceedings for guardian purposes; the court identified this as a possible route for correcting the procedural anomaly. (see paras [13], [50])

Z (Interim Care Order) (Rev 1)

[2020] EWCA Civ 1755 · 18 December 2020

The Court used section 41 as part of the statutory framework governing representation of children in specified proceedings. It held that competence could not be assessed by simply relying on a stale private law assessment when the public law issues differed. (see paras [45]-[46]) The Court identified section 41(1) as making appointment of a Cafcass officer or Welsh family proceedings officer mandatory in specified proceedings. This formed part of its explanation of the different representation regimes. (see para [45]) The Court noted that section 41(3) permits the court to appoint a solicitor for a child in specified proceedings where the statutory conditions are met. The provision formed part of the framework requiring careful consideration of Z's direct representation. (see para [45]) The Court identified section 41(4) as specifying the conditions relevant to appointment of a solicitor for a child, including sufficient understanding and the child's best interests. This supported the need for an appropriate competence assessment. (see para [45])

11 more judgments, and what each says about section 41, are in the case-law panel in the full Act.

Amendments and notes

17 notes from legislation.gov.uk

Amendments

  1. F585S. 41 side note substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 91(e); S.I. 2001/919, art. 2(f)(ii)
  2. F586Words in s. 41(1)(2)(4)(a)(10)(a)(b)(c)(11)(a) substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 91(a)(b)(c); S.I. 2001/919, art. 2(f)(ii)
  3. F587Words in s. 41(1) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 9(2); S.I. 2005/700, art. 2(2)
  4. F588Words in s. 41(2)(4)(a) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 9(3); S.I. 2005/700, art. 2(2)
  5. F589Words in s. 41(6)(e) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 33(2); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.
  6. F590Words in s. 41(6)(h)(ii) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 33(2); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.
  7. F591S. 41(6)(hh) inserted (30.12.2005) by 2002 c. 38, ss. 122(1)(a), 148 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(k)
  8. F592S. 41(6A) inserted (7.12.2004) by 2002 c. 38, ss. 122(1)(b), 148 (with Sch. 4 paras. 6-8); S.I. 2004/3203, art. 2(1)(l)
  9. F593S. 41(6B) inserted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 33(3); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.
  10. F594S. 41(7)-(9)(12) repealed (1.4.2001) by 2000 c. 43, ss. 74, 75, Sch. 7 Pt. II para. 91(d), Sch. 8; S.I. 2001/919, art. 2(f)(ii)(g)
  11. F595Words in s. 41(10)(a)(b) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 9(4)(a); S.I. 2005/700, art. 2(2)
  12. F596Words in s. 41(10)(c) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 9(4)(b); S.I. 2005/700, art. 2(2)
  13. F597Words in s. 41(11) inserted (1.4.2005) by Children Act 2004 (c. 31), s. 40, Sch. 3 para. 9(5); S.I. 2005/700, art. 2(2)

Modifications

  1. C44S. 41 modified (1.11.2012) by Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), regs. 1(2), 5(3)(c)
  2. C45S. 41(2) modified (14. 10. 1991) by S.I. 1991/1395, rules. 1, 11(1)
  3. C46S. 41(3)-(5) applied (with modifications) (23.12.2011) by The Legal Services Act 2007 (Designation as a Licensing Authority) (No. 2) Order 2011 (S.I. 2011/2866), arts. 1(2), 8(1)(2), Sch. 2

Commencement

  1. I38S. 41 in force at 14.10.1991 see s. 108(2)(3) and S.I. 1991/828, art. 3(2)