Family Procedure Rule 16.4

The Family Procedure Rules 2010 are a set of guidelines which facilitate a further understanding of family law. The rules aim to modernise the practice of family law in England and Wales, whilst also aiding solicitors in practicing a more standardised process.

Specifically, Rule 16.4 of the Family Procedure Rules focuses on the law relating to the Court making a child a party to private law proceedings and the appointment of a Guardian who will be responsible for presenting the child’s case.

This action is not taken very frequently as the general rule is that the Court only does this in complex cases. For example, a child may be made party to the proceedings when there is a safeguarding concern or due to allegations of harm suffered by the child. The benefit of doing so is that the interests of the children can be solely focused upon, as opposed to their needs being caught up in competition between opposing parties.

Children’s Act Proceedings

The Children Act 1989 governs family law relating to local authority services for children, children’s homes, adoption and fostering. Within the statute, a framework is provided which enables better safeguarding of children. An example of a Children Act proceeding may include allegations of harm towards a child or safeguarding concerns from the police or local authority.

Court-Appointed Children’s Guardian

In private family law matters, where the child has been made a party to the proceedings, a Children’s Guardian will be appointed by the Court. Qualified social workers, who specialise in working with children and families, regularly represent children as Court appointed guardians.

Under Section 5 of the Children Act 1989, it is stated that it may be in the best interest of the child to appoint a Children Act guardian if an application has been made in regard to a child who has no parent with parental responsibility, to a child’s whose parent/guardian has died.

The role of a Guardian would include appointment of a Solicitor to represent the child. Alongside this, and dependent on the child’s understanding, the Guardian should provide advice for the child on the ongoing proceedings.

Moreover, a Guardian is responsible for the preparation a report for the court, highlighting what is in the best interests of the child, keeping in mind the child’s wishes and feelings. Documents must also be served upon the Court by the Guardian. If the child has not been served the same, the Guardian can explain the contents of the service bundle to the child.

Upon conclusion of a matter, and if a Guardian deems it appropriate, they should explain the judgment of the Court to the child.

In cases where the child does not agree with their Guardian, the child can be separately represented by their Solicitor. A child will be entitled to a legal aid solicitor if they have been made a party to the proceedings.

Rule 16.4 Guardian Costs

When a child requires representation in matters of this type, legal aid funding will be provided.

In family proceedings relating to orders such as child arrangements orders, the Family Advocacy Scheme applies and Solicitors or Counsel can only recover fixed fees for conducting advocacy.

However, the Family Advocacy Scheme does not apply Rule 16.4 type matters when representing the child. As a result of this, hourly rates for all work on Rule 16.4 Children Act matters, including advocacy, can be recovered.  This can allow for a better recovery in relation to the time spent on the case, as it is not restricted to exclusive fixed-fee rates.

Recovery of Guardian Costs

When the number of hours spent working on a case requires assessment, a Bill of Costs should be prepared.

A costs draftsman can prepare this document and ensure that all work and advocacy is listed chronologically. Alongside the details of the work provided by the legal aid solicitor, an hourly rate will be provided. This figure can be taken from the Legal Aid Rates calculator document provided by the government.

A Bill of Costs will provide a final figure of how many hours have been worked and total the legal costs incurred by the conducting Solicitor.

How can ARC Costs Assist?

At ARC Costs, our team of legal aid specialist Costs Draftsman and Costs Lawyers can be relied upon to assist in a variety of legal costs disputes, including legal aid funded cases and those involving Rule 16.4 guardian costs.

Our services extend to completing all CCMS related work following preparation of the Bill, including uploading of the relevant XML document, provision of supporting documentation and securing payment from the Legal Aid Agency.

To find out more about how we can help you, please contact us at info@arccosts.co.uk or telephone us on 01204 397302.

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