The concept of guardianship in child protection
The concept of guardianship is often associated with looking after someone’s financial interests. In such cases it is a question of the Register Office or the District Court appointing a guardian to look after a person’s financial interests when that person is incapacitated. In the context of child protection, a Children’s Guardian looks after the interest of the child, which may become necessary in a situation where the legal custodian of the child is for some reason unable to act on behalf of the child in an unbiased manner.
UN Convention on the Rights of the Child
According to the UN Convention on the Rights of the Child, the best interests of the child shall be the primary consideration in all actions concerning children undertaken by the authorities. The child shall also be provided with the opportunity to be heard in any judicial and administrative proceedings affecting him or her, either directly or through a representative.
The act on the rights of social welfare clients enabled guardianship in child protection cases
In many European countries Children’s Guardians have long been appointed in situations other than just those related to financial matters. In Finland, appointing a guardian in child protection cases became possible with the Act on the Status and Rights of Social Welfare Clients, which came into force in 2001. According to the law, a court may appoint a Children’s Guardian for a child to deal with a specific social welfare issue when the legal custodian is unable to act in an unbiased manner in the case. The child’s own views and wishes are taken into consideration to a degree corresponding to his or her age and level of development. The best interest of the child must always come first in all actions undertaken by social services.
The new child protection legislation and the position of the guardian
In addition to the Act on the Status and Rights of Social Welfare Clients, guardianship in child protection cases is also mentioned in the new Child Welfare Act (417/2007), which will strengthen the child’s role in decision making affecting the child. According to Section 22 of the new law, the child must be appointed a guardian to exercise the child’s right to be heard, when necessary. Social workers are obliged to ensure that a Children’s Guardian will be applied for when necessary. In addition, according to Section 87 of the new law, the child is entitled to have a legal representative in court proceedings.
Guardianship fee
There are currently no regulations on the fees to be paid to Children’s Guardians, but based on the forthcoming Child Welfare Act, the fee will be paid by the municipal authority responsible for child protection, while the fee of the legal representative is paid by the State.
The criteria for appointing a guardian in child protection cases
The grounds for the child welfare bill (Government Bill 252/2006 and Ministry of Social Affairs and Health reports 2006:25) further specify the criteria by which a Children’s Guardian can be appointed to exercise the child’s right to be heard in place of the legal custodian. Firstly, there must be reason to assume that the custodian will not be acting in the best interest of the child in the matter. Furthermore, it should be considered whether appointing a guardian is necessary to settle the matter or to otherwise safeguard the child’s best interest. An apparent conflict of interest between the custodian and the child may arise, for example, when the custodian or a person close to him or her is suspected of the abuse or sexual abuse of the child. Appointing a guardian may also be required in situations where the custodian is incapacitated because of health reasons to look after the best interest of the child.
Supreme Court Decision
A Supreme Court precedent on guardianship in child protection cases (2004:44) stated that children placed in care require a guardian in situations where the parents at the time the care plan was drawn up were unable to make the necessary distinction between their own and the child’s best interest and thereby look after the child’s interest in an unbiased manner.
The custody and visiting rights of a child
The child’s position when deciding on the custody and visiting rights is often problematic and there has been a clear need for the services of a Children’s Guardian in difficult conflicts over the custody of the child. Yet in matters regarding the custody of the child and visiting rights the chid is not a legal party, since it is a matter between the child’s custodians. Therefore, a guardian cannot be appointed for the child, unless the conflict over custody also involves a child protection process, in which case the Act on the Status and Rights of Social Welfare Clients (and as of the beginning of 2008 the Child Welfare Act) can be applied.
The City of Helsinki Family Law Matters, which piloted the Guardianship in Child Protection project, has issued an opinion on the matter from its own perspective.
Applying for and appointing a guardian in child protection cases
The application for appointing a Children’s Guardian can be submitted by the Register Office, social services or the child's legal custodian. The Register Office may appoint the guardian, provided the legal custodian of the child and social services agree on the matter. Otherwise the guardian will be appointed by the District Court.
The qualifications of a guardian in child protection
There are no specific provisions for the qualifications of a guardian in child protection cases. According to Section 5 of the Guardianship Services Act, a suitable person who consents to the appointment shall be eligible as a guardian. When assessing a person’s suitability, the skills and experience of the proposed person, as well as the scope and nature of the task, must be taken into consideration. According to the new Child Welfare Act, the guardian may either be an expert who is familiar with the child’s situation or a lawyer or a person with some other legal training. When selecting the guardian, special attention must be paid to the nature of the matter and its significance to the child.
The duties of a Children’s Guardian
The duty of a guardian in child protection cases is to use a variety of means to obtain a clear understanding of what the child’s wishes and opinions are and to determine the best interest of the child. The most important tasks for the Children’s guardian are to represent the child, bring the child’s opinion to the fore and to communicate what the best solution from the child’s perspective would be. The tasks vary greatly from case to case and largely rely on the discretion of the guardian. If the guardian and legal representative are two different persons, they must work in close co-operation so that the child’s opinion and interest will be acknowledged as well as possible also in the court of law. In cases where the child has the right to be heard, the legal representative has a loyalty obligation towards the child and may therefore only disclose what the child has in fact disclosed to others. The opinion of the guardian may differ from that of the child.
The duties of a Children’s Guardian in relation to the social worker
The social worker is also duty-bound to safeguard the best interest of the child, but he or she has no right to exercise the child’s right to be heard. A guardian has, in the matter that he or she has been appointed to deal with, the same rights of a party to the case as the custodian normally has. Hence, the guardian has access to documents concerning the child and the right to exercise the child’s right to be heard. The guardian must consult the child when making decisions that affect the child.
The child has a right
The child has a right to express his or her opinion, but he or she also has the right not to express it. A guardian working with a child needs to have relevant experience and the ability to listen to the child and make accurate observations. Several methods have been developed for working with a child, but the most important thing is to create an atmosphere that is as natural as possible and that allows the child to engage in easy interaction.