View source for ICLR (2019) WLR(D) 216

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[2019] WLR(D) 216

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Family Division

In re CS (A Child) (Appeal: Sufficiency of Child’s Understanding)

[2019] EWHC 634 (Fam)

2019 Feb 27; March 18

Williams J
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''Children— Orders with respect to children— Representation— Child instructing own solicitor to appeal order made in private law children proceedings without approval from appointed guardian— Whether solicitor or court to determine child’s competence to instruct solicitor— Factors relevant to determination— Extent to which child’s autonomy relevant— Whether guardian required— FPR rr 16.6, 16.29''

The mother applied to vary a private law child arrangements order that the parties’ child live with the father. The child was made a party and a children’s guardian appointed pursuant to FPR r 16.4 who, in turn, appointed a solicitor. After the judge had given his final decision dismissing the application, but before publication of his judgment, the child contacted a different solicitor, whom she had originally approached directly at the outset of the matter and who had assessed her at that time as competent to instruct, to discuss an appeal. An appellant’s notice was ultimately received by the Family Division of the High Court identifying the child as the appellant, without a guardian, and a third solicitor as the solicitor on record. The preliminary issue arose whether: (i) the appeal constituted new proceedings and FPR r 16.6(3) applied, such that the second solicitor’s assessment of the child’s understanding to give instructions directly without endorsement or permission from the court was determinative and the child could litigate without a guardian; or (ii) the appeal was a continuation of the original proceedings so that, pursuant to FPR r 16.6(5) and (6), it was for the court to consider whether the child had sufficient understanding to conduct the appeal without a guardian and to agree to the appointed guardian’s removal.

On the preliminary issue—

Held, (1) The child’s appeal to the High Court from the order of the district judge in the private law proceedings in the family court was a continuation of, and another step or stage in, the first instance proceedings. Accordingly, FPR r 16.6(5) applied with the consequence that it was for the court to determine whether the child had sufficient understanding to conduct the appeal proceedings without the appointed guardian (paras 46, 47, 48, 49).

In re M (Children) (Court First Seised) [2018] 3 FCR 405, CA considered.
(2) Even if the appeal constituted separate proceedings so that FPR r 16.6(3) was engaged, the court nevertheless remained the ultimate arbiter of whether the child had understanding or sufficient understanding to conduct the proceedings without a guardian. The court could raise the issue of its own motion and make the determination under FPR r 16.16(10). When applying FPR 16.6(10)(b) the court would be considering whether the solicitor’s assessment under FPR r 16.6(3)(b)(i), that “the child is able having regard to the child’s understanding to give instructions in relation to the proceedings”, remained fulfilled (paras 35–40).

Dicta of Waite LJ in In re T (A Minor) (Child: Representation) [1994] Fam 49, para 67, CA applied.
(3) Whether the court was dealing with the issue under FPR rr 16.6(3)(b)(i), (6), (10), or 16.29(2)(b) or (8)(b), the core evaluation was whether the child had sufficient understanding and intelligence to be able to give instructions or conduct proceedings. Significantly more weight was to be given to the autonomy of the child than under the court’s previous paternalistic approach. The autonomy issue sounded in both pure understanding and welfare terms. Although each case was to be determined on its facts, when assessing understanding the court was likely to attribute more weight to the child’s views of the issues and the reasons they gave for wishing to be involved amongst others. The expression of a wish for an objectively unwise outcome ought not now to undermine the evaluation of sufficient understanding in the way it might previously have done. It was likely that the child was also to be held to a somewhat lower expectation of understanding of the litigation process than that considered in earlier authorities which appeared to contemplate an ability to negotiate complexities of litigation which many adults might have struggled with. The welfare of the child sounded both in favour of their involvement (recognising the value they might add to the process and their rights as a person significantly affected by the decision) and against (where involvement may have exposed them to harmful emotional consequences). In the present case, having considered the pertinent factors, given due weight to the child’s personal autonomy and had regard to the welfare implications, the conclusion was that the child did not have the sufficient understanding to conduct the proceedings without a guardian. Accordingly, the child could not pursue the appeal without a children’s guardian (paras 40, 51, 63, 77, 79, 80, 82).

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, HL(E) and In re W (A Child) (Care Proceedings: Child’s Representation) [2017] 1 WLR 1027, CA applied.
In re N (Contact: Minor Seeking Leave to Defend and Removal of Guardian) [2003] 1 FLR 652 considered.
Factors to be considered in determining whether a child has sufficient understanding to give instructions to pursue or conduct an appeal (paras 64–65).

Barbara Hopkin, solicitor (of Hopkin Murray Beskine ltd), for the child.

Mark Jarman (instructed directly) for the father.

Richard Jones (instructed by Freemans Solicitors) for the children’s guardian.

The mother did not appear and was not represented.

Thomas Barnes, Solicitor