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a proper person to be such guardian”.  There is an argument that a relative who is applying for custody could not be seen to be sufficiently independent to represent the best interests of the child as a guardian ad litem.  In other jurisdictions, a guardian ad litem is a professional officer, usually a social worker, appointed to interview the child and represent his views and best interests to the court.  

Rule 72

6.125Rule 72 is confined to ordering separate representation by a solicitor, or solicitor and counsel, and appointing the Official Solicitor or other fit person to be guardian ad litem for an application for a variation of a settlement order or any other application for ancillary relief.  Such applications are financial and property matters.


6.126In chapter 2 we made a recommendation that the anomalies in rule 72 and rule 108 of the Matrimonial Causes Rules (Cap 179) as to the appointment of a separate representative or guardian ad litem be addressed.  There is no power in rule 108 to direct separate representation by lawyers unlike rule 72.  The Official Solicitor has to consent to being appointed under rule 108, though this is not required for rule 72.  Rule 108 refers to a “proper person” acting as guardian ad litem while rule 72 refers to a “fit person”.  Neither term is defined.  It seems ironic that there is no provision referring to separate representation by a lawyer in a matrimonial dispute, and yet there can be for financial and property matters.  

6.127In rule 72 it is clear that the solicitor is acting for the child and he has to file the certificate that the proposed guardian has no interest adverse to the child.  In rule 108 the solicitor is acting for the applicant who is seeking to be appointed guardian “with authority to take part in the proceedings on the child’s behalf”.  “A solicitor” has to certify that the applicant is a proper person with no adverse interest to the child, though it is not clear whether this must be the solicitor representing the applicant, or whether it can be a solicitor who takes no further part in the proceedings.

6.128In fact, rule 108 comes under that part of the rules which is headed “Other Applications”, rather than under that part headed “Applications relating to Children”.  On one reading it may seem that the policy intention was that the “matrimonial proceedings” referred to in rule 108 do not include custody proceedings.  However, it is in exactly these type of proceedings that appointment of a separate representative or a guardian ad litem would be appropriate.  In any event, the courts seem to have appointed the Official Solicitor in custody proceedings.  For the removal of doubt it should be made clear that a separate representative can be appointed in any dispute on the parental responsibility or guardianship of a child.

Guardian ad litem

6.129In chapter 2 we suggested that it would be more appropriate if a person conferred with the role of guardian ad litem was a professional person with experience in children’s issues rather than any individual who is a “proper” or “fit” person.  We have already recommended that non-parents should be able to

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