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W (A Child) [2016] EWCA Civ 1051

A 16 year old’s appeal on the ground that, in public law proceedings, she should have been able to part company with her guardian and to instruct her own solicitor.

By way of background, the appellant ("A") had been the subject of care proceedings and had been separately represented throughout much of those proceedings. A's position, which was recognised by the judge in the lower court, was that she did not accept the judge's findings and that she wanted to return home. However, A was made the subject of a care order in March 2015.

A absconded a number of times from her foster home and then took up residence at her grandmother's home in May 2015. Sometime later, A's parents moved in to live with the grandmother. In February 2016, the local authority applied for a recovery order, under section 50 Children Act 1989, to return A to foster care.

It seems that A had, as a litigant in person, attempted to apply to discharge the care orders made in relation to herself and one of her brothers. Despite irregularities in that application the matter proceeded to a directions hearing in March 2016.

In the recovery order proceedings, a dispute arose over A's competence to instruct her own solicitor and a child and an adolescent psychiatrist was appointed to report on this point. Notwithstanding difficulties in obtaining public funding, at a hearing in April 2016, it was explained that A had not attended her appointment with the psychiatrist as she was studying and also she felt nothing had happened to lessen her ability to understand things since she had been separately represented in the care proceedings. The judge refused to grant A separate representation, noting that A had not demonstrated that she was not being influenced by her parents to conduct litigation; that A did not understand the risks and had insufficient understanding of the issues. The judge made the recovery order.

At a later hearing the judge dismissed A's discharge application. Lacking separate representation, A did not attend that hearing and her interests were represented by the guardian.

A appealed the judge's refusal to allow her separate representation in relation to the applications for discharge and recovery.

At the appeal hearing, it was agreed that the appropriate test to establish whether a child should instruct his or her own solicitor was set out at FPR rule 16.29(2). Further, if the guardian's solicitor considers (having contemplated the matters specified at Rule 16.29(3)) a child wishes to give instructions which are at odds with those given by the guardian, and that child is able, having regard to his or her understanding, to give such instructions, then the solicitor must follow the child's instructions rather than the guardian's.

It was clear that A wished to give instructions which differed from those of the guardian, and so the appeal court focussed upon whether A was 'able, having regard to [her] understanding' to give her own instructions. The court referred to Re F (Children) [2016] EWCA Civ 546 in which the President reviewed the relevant law. The court noted the importance of a child's autonomy and that it may be in a child's interests to have some direct involvement in the litigation.

The appeal was allowed and it was recorded that the judge in the lower court had confused the child's welfare with her understanding when applying the test at rule 16.29(2). The court found the judge had given too little weight to A's age, her history of instructing her own solicitor and the views of that solicitor. Too much regard was given to concerns about parental influence, A's denial of facts found in the care proceedings and established future risks.

Summary by Sara Hunton, barrister, Field Court Chambers
_________________________________

Case No: B4/2016/2037 & 2056
Neutral Citation Number:
[2016] EWCA Civ 1051

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HER HONOUR JUDGE WILLIAMS
ZC16C00110

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/11/2016


Before :

LADY JUSTICE BLACK

and
LORD JUSTICE TOMLINSON
- - - - - - - - - - - - - - - - - - - - -

W (A CHILD) 
- - - - - - - - - - - - - - - - - - - - -

Ms Alev Giz (instructed by Philcox Gray Solicitors) for the Appellant
Mr Nicholas O'Brien
(instructed by the local authority) for the Respondent
Ms Gill Honeyman
(instructed by Covent Garden Family Law) for the Children's Guardian
The father in person
The Mother did not attend and was not represented

Hearing dates: 6th October 2016
- - - - - - - - - - - - - - - - - - - - -

Judgment
Lady Justice Black:
1. This appeal is brought by FW, a 16 year old girl, in respect of orders made by HHJ Williams in April and May 2016. The central issue in the appeal is whether the judge should have permitted FW to part company with her children's guardian and instruct her own solicitor in public law proceedings, namely an application for a recovery order brought by the local authority which holds a care order in relation to FW and FW's own application for the discharge of the care order.

2. At the conclusion of the appeal hearing, having formed the view that FW should indeed have been allowed to instruct her own solicitor, we told the parties of our decision to allow the appeal for reasons which would be provided in writing. The purpose of this judgment is to set out my reasons.

3. I should deal immediately with the formalities with regard to FW's participation in the appeal. She is the appellant, acting through a solicitor instructed by her independently of her children's guardian.  The Civil Procedure Rules 1998 govern the appeal proceedings and FW is a child for the purposes of Part 21 of the Civil Procedure Rules 1998. By virtue of Rule 21.2(2), a child must have a litigation friend to conduct proceedings on his or her behalf unless the court makes an order under Rule 21.2(3) permitting the child to conduct the proceedings without. FW has no litigation friend and no application for an order under Rule 21.2(3) was made at any stage of the appeal process. The position therefore needs to be regularised. Given the view we have taken as to FW's understanding in relation to the proceedings at first instance, in my view it would be proper to permit FW to conduct the appeal without a litigation friend. I would therefore make an order to that effect.  

Background

4. In 2014, FW and her siblings were the subject of care proceedings brought by the local authority for the area in which they were living ("the local authority"). FW was separately represented for much of those proceedings. This arose because the solicitor appointed by the children's guardian in the care proceedings (Ms Gaff) considered that FW wanted to give instructions that conflicted with the guardian's and was able, having regard to her understanding, to give such instructions on her own behalf. On 24 September 2014, Judge Gargan provided for FW to be separately represented in the proceedings and FW instructed her own solicitor, Ms Donn, both for the purposes of the fact finding hearing which culminated in a judgment of Judge Williams dated 10 November 2014, and for the purposes of the welfare hearing in relation to which Judge Williams gave a judgment dated 26 March 2015. Ms Donn instructed Ms Giz of counsel to represent FW at that time and Ms Giz has also represented her in the appeal.

5. The findings made by Judge Williams in her judgment of November 2014 included that there had been physical and emotional abuse of the children, including the imposition of demeaning and humiliating punishments upon certain of them, and that they were controlled by their father. Upon this basis, the judge found that the threshold in section 31(2) of the Children Act 1989 was satisfied, imposing interim care orders pending the welfare hearing at which decisions would be made about the children's long term future. 

6. Judge Williams recognised in her November judgment that at that stage FW did not accept what she, the judge, had found to have happened and that she wanted to go home. That remained the position right up to the welfare hearing and has continued to be the case since then.

7. In preparation for the welfare hearing in March 2015, a report dated 14 November 2014 was produced by the department of child and adolescent mental health at Great Ormond Street Hospital. This drew upon the department's assessment, which included meeting the parents and the children and observing their contact together. Great Ormond Street recommended a placement for FW in long term foster care. The "Executive Summary" of their report contained the following passage which is material to the appeal:

"The children have been brought up in an environment where there has been an expectation that they will remain subservient to their parents and their parents' wishes at all times. Due to this the older children have been unable to develop their own sense of autonomy and self-belief."

8. Expressing her conclusions in her welfare judgment of March 2015, Judge Williams said (§28):

"This large family has because of the parents' views about the outside world been isolated to a significant extent and therefore the children in particular appear to be emotionally dependent on one another, as well as their parents and, especially in FW's case, extremely loyal to her parents and the family and she made this clear to me when I met her earlier today." 

9. The judge considered that the children's physical and emotional safety could not be met if their father remained a primary carer for them and she could not be satisfied that the mother's recent separation from him would endure (she was correct to be doubtful as it did not last). The proceedings therefore concluded in relation to FW with the making of a care order on 26 March 2015.

10. FW had been prone to run away from her foster home prior to the March 2015 hearing and she did not stay with her foster carers after it either. She again absconded and this time took up residence in her grandmother's house from May 2015, having unsupervised contact with her parents. In due course, the parents moved in to live with the grandmother as well. The local authority applied on 12 February 2016 for a recovery order under section 50 of the Children Act 1989 with the objective of having FW returned to foster care.

11. The procedural history from this time is not as clear as it might be but what follows is, I hope, a description of the main features of it. At around the time of the local authority's recovery order application, FW took matters into her own hands by attempting to apply for the discharge of the care orders in relation to herself and one of her brothers. The papers include an unissued application to this end, dated 9 February 2016. Some information as to what occurred at about this time is available from the statement of Ms Donn dated 19 May 2016. This statement post-dates the decisions under appeal and a proper formal application should have been made for permission to introduce it in the appeal. For that reason, Mr O'Brien for the local authority opposed its use in the appeal. However, we considered that its contents shed important light on matters and that it was appropriate to permit it to be introduced, notwithstanding the regrettable failure to observe formalities. In it, Ms Donn said that FW attended at her office on 4 March 2016 and instructed her to apply for the discharge of the care order for her because she (FW) had tried to apply for this as a litigant in person but had been told that she had completed the wrong form. Before Ms Donn was able to proceed with this, it transpired that the court had, in fact, accepted FW's discharge application as valid. It can be seen from the order that Judge Williams made at a directions hearing on 16 March 2016, for instance, that it was accepted that FW had applied, on 15 February 2016, for the discharge of the care order and that directions were given in relation to that application.

12. The local authority's application for a recovery order had resulted in the appointment of a children's guardian for FW prior to the directions hearing on 16 March 2016. This was Ms Reed, who had also been the guardian in the care proceedings. Ms Reed instructed Ms Gaff as FW's solicitor. By 16 March 2016, however, it was apparent that FW wished to be represented separately by Ms Donn, who had written to the court to this effect, indicating that she considered that FW was still competent to instruct her and asking that she should be appointed as FW's solicitor. The guardian and Ms Gaff did not agree that FW was in a position to instruct Ms Donn. In view of the conflict of opinion, the judge made an order on 16 March 2016 permitting Ms Gaff to instruct Dr Butler, a child and adolescent psychiatrist, to report on FW's "competence/capacity to independently instruct a solicitor and conduct the proceedings separately from the children's guardian".  She listed the application for a recovery order and the discharge application for 1 April 2016, when the question of separate representation was to be determined.

13. Unfortunately, neither Ms Donn nor Ms Giz were able to attend on 1 April. In the light of the email sent by Ms Donn to the court on 15 March 2016, from which it was apparent that Ms Giz was not available on 1 April, it was a pity that the matter was listed on that day, although I can see that it might have been thought that the urgency was such that it was not possible to await a date when Ms Giz would be able to attend. Because the legal aid certificate for the child had been granted in favour of Ms Gaff, legal aid could not be granted to enable Ms Donn to instruct counsel on public funds and she was unable to find anyone else to take over the matter on a pro bono basis. There was therefore no one to argue FW's case for separate representation at the hearing on 1 April. Ms Donn had sent the court a draft application, made under Rule 16.29(7) of the Family Procedure Rules 2010, for the termination of Ms Gaff's appointment and the substitution of Ms Donn as FW's solicitor, but, without public funding, she was unable to issue the application formally. The court nonetheless rightly treated the application as effective. A position statement on FW's behalf was also provided to the court, in which were set out FW's instructions to Ms Donn.

14. FW herself was not at court on 1 April, her attendance having been excused.  She had not attended her appointment with Dr Butler who had, consequently, been unable to provide a report. Ms Gaff's firm had written to FW about the appointment, explaining that Dr Butler was to "look specifically as to whether you have the capacity (understanding) to conduct the proceedings separately from the guardian and instruct your own solicitor" and saying that without the assessment, the judge may be unable to consider FW's request to do this. FW explained to Ms Donn why she did not attend the appointment with Dr Butler. She said that she just wanted to get on with her studies and did not think that anything had changed to render her unable to understand things; all that had happened was that she had got older. She also said that her grandmother had said (the guardian says inaccurately) that the guardian had told her that she was to see Dr Butler because she needed psychological help; FW said that was another reason she did not want to go to see Dr Butler.

15. On 1 April, the judge had submissions from counsel for the local authority and the guardian. Her judgment shows that in deciding FW's application to be represented by Ms Donn rather than Ms Gaff, she took into account particularly the guardian's and Ms Gaff's views about FW's presentation and the November 2014 report of Great Ormond Street Hospital. The core of the judge's reasoning for refusing FW separate representation is contained, I think, in §§12 and 14 of her judgment:

"12. Counsel for the Guardian submits that FW's capacity to instruct her own solicitor is severely compromised by her apparent extreme subservience to her parents, her isolation and being so caught up in her parents' thinking that she is unable to hold independent views. It appears she is being used or required by her parents to conduct litigation in which they choose not to play an active role and direct participation poses an obvious risk of harm to FW. Both the Guardian and FW's solicitor (instructed by the Guardian) concluded that FW does not understand the risks and that she lacks sufficient understanding of the issues in the proceedings and could not be considered therefore to have capacity to instruct her own solicitor directly. I agree with those submissions."

"14. I am satisfied in this case that FW has not been able to demonstrate that she is not being used or required by her parents to conduct litigation. She has issued an application to discharge the care order. FW attempted to issue an application to discharge the care order for her younger brother, E, also. All this seems to be at the behest of the parents, who, as I have said, choose not to take part in these proceedings. She is completely allied to her parents' position. In these circumstances, I will not grant FW's application for permission to be separately represented."

16. Judge Williams went on to grant the recovery order that the local authority sought, adjourning the discharge application until 3 May 2016 and providing that FW might attend that hearing. On 3 May 2016, FW did not attend. In view of the judge's earlier refusal to authorise her separate representation, her interests were looked after by the guardian, who did not support the discharge of the care order and did support the local authority's application for a further recovery order, FW having again absconded from foster care. The judge dismissed the discharge application and granted the recovery order, leaving it to the local authority's discretion as to when the order was executed, as FW was continuing to attend school and was about to sit her GCSEs, and there was a reluctance to disrupt her at this time unless it was necessary in order to keep her safe.

The orders appealed

17. FW appealed against Judge Williams' refusal, by order of 1 April 2016, to permit her to be separately represented in relation to the local authority's application for a recovery order and in relation to her own application to discharge the care order imposed in relation to her in March 2015. She also appealed against the recovery order granted on 1 April 2016 and against the dismissal of her discharge application on 3 May 2016, but Ms Giz made quite clear that the appeals against these orders depended upon the appeal concerning separate representation. In her submission, if the appeal in relation to separate representation succeeded, the substantive orders could not survive because FW had been denied the opportunity that she should have had to present her case through her own legal team. Although Ms Honeyman for the guardian argued on paper that the decisions about the recovery order and the discharge of the care order could be sustained even if the separate representation appeal succeeded, she wisely did not press this point in oral argument. The appeal therefore focused upon the question of separate representation.

The grounds of appeal and discussion

18. There was some divergence of view as to which precise part of Rule 16 FPR 2010 should be the focus of the court's attention. This was explored during the hearing but I do not propose to go into the details because there was, in fact, agreement as to the "test" that determined whether or not FW was entitled to be separately represented. I should make clear that when I speak of FW being separately represented, this is a loose term not entirely reflecting the complexity of the scheme under section 41 of the Children Act 1989 and Rule 16 FPR 2010. What I seek to convey by it is a situation in which FW separates from the children's guardian appointed to represent her interests, and gives her own instructions to a solicitor, as occurred in the original care proceedings. Often a separation of this type results in the child instructing the solicitor originally appointed by the guardian, and the guardian operating separately but, for good reasons, that was not the way in which things were organised during the care proceedings in this case and, in the recovery/discharge proceedings, FW wished, of course, to go back to the solicitor who had represented her before. That was the objective of her application under Rule 16.29(7).

19. It was ultimately common ground between the parties during the appeal hearing that the question of separate representation for FW had to be determined by reference to Rule 16.29. It may, therefore, be helpful to set out the relevant provisions of that rule before turning to FW's grounds of appeal. So far as material, Rule 16.29 provides:

"16.29 Solicitor for child

(1)  Subject to paragraphs (2) and (4), a solicitor appointed –

(a) under section 41(3) of the 1989 Act; or

(b) by the children's guardian in accordance with the Practice Direction 16A,
must represent the child in accordance with instructions received from the children's guardian.

(2) If a solicitor appointed as mentioned in paragraph (1) considers, having taken into account the matters referred to in paragraph (3), that the child –

(a) wishes to give instructions which conflict with those of the children's guardian; and

(b) is able, having regard to the child's understanding, to give such instructions on the child's own behalf,
the solicitor must conduct the proceedings in accordance with instructions received from the child.

(3) The matters the solicitor must take into account for the purposes of paragraph (2) are –

(a) the views of the children's guardian; and

(b) any direction given by the court to the children's guardian concerning the part to be taken by the children's guardian in the proceedings.

(4) …
(5) …
(6) …

(7) Where the child wishes an appointment of a solicitor –

(a) under section 41(3) of the 1989 Act; or

(b) by the children's guardian in accordance with the Practice Direction 16A,
to be terminated –

(i) the child may apply to the court for an order terminating the appointment; and

(ii) the solicitor and the children's guardian will be given an opportunity to make representations.

(8) …

(9) When terminating an appointment in accordance with paragraph (7) or (8), the court will give its reasons for so doing, a note of which will be taken by the court or a court officer.

(10) …"

20. The parties agreed that Rule 16.29(2) establishes the test for whether the child should be allowed to instruct his or her own solicitor in circumstances such as those which arose here. It is, in fact, directed to the position of the child's solicitor, being drafted in terms of what that solicitor considers to be the position but, as I shall set out, it also sets the standard that the court must apply when involved under Rule 16.29(7).

21. By virtue of Rule 16.29(2), if the solicitor appointed on the child's behalf, by the guardian in accordance with Practice Direction 16A or the court under section 41(3), "considers", taking into account the matters set out in Rule 16.29(3), that the child wishes to give instructions which conflict with the guardian's instructions and "is able, having regard to the child's understanding, to give such instructions" on his or her own behalf, the solicitor must conduct the proceedings in accordance with the child's instructions not the guardian's. Rule 16.29(7) was, of course, invoked in this case because the solicitor appointed by the guardian did not consider that matters were as set out in Rule 16.29(2), and FW forced the issue by applying for her appointment to be terminated. No separate test is prescribed for an application under Rule 16.29(7). Given the structure of Rule 16.29 as a whole, it makes sense that, in a situation such as that which arose here, the court will have regard to Rule 16.29(2) and grant the application if it considers that matters are as set out there. This was the way in which all parties approached things in argument before us. There being no doubt about FW's wish to give instructions which conflicted with the guardian's, this meant that the concentration was upon whether FW was "able, having regard to [her] understanding", to give her own instructions.

22. Ms Giz argued that Judge Williams was wrong to conclude that FW lacked sufficient understanding to give instructions on her own behalf. There is no need for me to go through the whole series of points that she made in this regard, but I will summarise the main ones. Amongst the criticisms were that the judge:

i) failed to give weight to the clear view of Ms Donn that FW does have sufficient understanding to give instructions and to explain why she preferred the view of Ms Gaff and the guardian about this;

ii) failed to take sufficient account of the fact that FW was separately represented in the previous proceedings and to explain what had changed since then;

iii) placed inappropriate reliance upon concerns that FW was under the influence of her parents and upon the fact that she did not accept that her parents posed any risk to her, and erred by applying a test of whether FW was able to hold views independently of her parents;

iv) wrongly placed upon FW the burden of demonstrating that she was not being used by her parents to conduct the litigation;

v) wrongly relied on welfare considerations rather than determining the critical question of whether FW had sufficient understanding to instruct her own solicitor;

vi) wrongly relied upon the report of Great Ormond Street Hospital despite the fact that, in the care proceedings, it had not resulted in FW losing the right to instruct her own solicitor.

23. There is no assistance to be found in the rules as to the precise nature of the understanding that will be required of a child before he or she is considered able to give instructions. There is some assistance to be found in the authorities, in particular in the case of Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011 to which the judge referred. There the children were joined as parties in private law proceedings in which their mother was seeking residence, with a guardian ad litem acting on their behalf. The older children (aged 17, 15 and 13) wished to act without a guardian and applied under Rule 9.2A of the Family Proceedings Rules 1991 for the removal of the guardian. Rule 9.2A provided that such an application was to be granted if the court considered "that the minor concerned has sufficient understanding to participate as a party in the proceedings concerned or proposed without ….a guardian ad litem." Thorpe LJ reviewed some of the cases in which the question of the child's understanding had arisen. He referred to Re S (A Minor)(Independent Representation) [1993] Fam 263, [1993] 2 FLR, from which it is clear that everything depends on the individual child in his actual situation and that understanding is not absolute but has to be "assessed relatively to the issues in the proceedings". He also identified three commonly encountered situations which had featured in cases, namely the disturbed child (see Re H (A Minor)(Care Proceedings: Child's Wishes) [1993] 1 FLR 440), children whose views are influenced or manipulated by family members (see Re H (A Minor)(Role of Official Solicitor) [1994] Fam 11, [1993] 2 FLR 552) and cases in which, in Thorpe LJ's terminology, there was "litigation disturbance" (see Re C (Residence: Child's Application for Leave) [1995] 1 FLR 927 and Re N (Contact: Minor Seeking Leave to Defend and Removal of Guardian) [2003] 1 FLR 652).

24. Paragraph 26 of Thorpe LJ's judgment drew attention to the developing appreciation of the autonomy of the child in terms which bear repeating:

"26. In my judgment, [Rule 9.2A] is sufficiently widely framed to meet our obligations to comply with both Article 12 of the UN Convention and Article 8 of the European Convention, providing that judges correctly focus on the sufficiency of the child's understanding and, in measuring that sufficiency, reflect the extent to which, in the twenty-first century, there is a keener appreciation of the autonomy of the child and the child's consequential right to participate in decision-making processes that fundamentally affect his family life."

25. I would also refer to §§ 28, 29 and 32 of Thorpe LJ's judgment where he said:

"28. …Although the tandem model [children's guardian plus solicitor instructed by the guardian] has many strengths and virtues, at its heart lies the conflict between advancing the welfare of the child and upholding the child's freedom of expression and participation. Unless we in this jurisdiction are to fall out of step with similar societies as they safeguard Article 12 rights, we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare.

29. In testing the sufficiency of a child's understanding, I would not say that welfare has no place. If direct participation would pose an obvious risk of harm to the child, arising out of the nature of the continuing proceedings and, if the child is incapable of comprehending that risk, then the judge is entitled to find that sufficient understanding has not been demonstrated. But judges have to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings."

"32. In conclusion, this case provides a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally. The FPR are sufficiently robustly drawn to accommodate that shift. In individual cases, trial judges must equally acknowledge that shift when they make a proportionate judgment of the sufficiency of the child's understanding."

26. I think it is fair to say that views about children's involvement in legal proceedings have continued to evolve since 2005. This is not the place for a comprehensive review of developments, and nor is one necessary because, in Re F (Children) [2016] EWCA Civ 546, which was decided after Judge Williams made her decision about FW's separate representation, the President of the Family Division (with whom Arden LJ agreed) set out the highlights of the jurisprudence, starting at §35 of his judgment.  By way of example, the evolutionary process has included developments in relation to children giving evidence in family proceedings (Re W (Children)(Family Proceedings: Evidence) [2010] UKSC 12, [2010] 1 FLR 1485), guidelines to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives (Guidelines for Judges Meeting Children who are Subject to Family Proceedings [2010] 2 FLR 1872), the involvement of the Children and Vulnerable Witnesses Working Group (culminating in a final report dated February 2015, see [2015] Family Law 443), and recognition that the child's state of mind may have a part to play in establishing habitual residence (Re LC (Children) [2014] UKSC 1). Summing the position up at §41 of his judgment, the President said:

"It is apparent that in relation to all these matters there has been a sea-change in attitudes over the last decade and more, even if on occasion practitioners and the courts have been and still are too slow to recognise the need for change or to acknowledge the pace of change. Moreover, and I wish to emphasise this, the process of change continues apace."

27. The question of whether a child is able, having regard to his or her understanding, to instruct a solicitor must be approached having in mind this acknowledgment of the autonomy of children and of the fact that it can at times be in their interests to play some direct part in the litigation about them. What is sufficient understanding in any given case will depend upon all the facts. In this particular case, in my judgment, the criticisms made by Ms Giz of Judge Williams' approach, taken together, fatally undermine the decision that she took. The careful submissions on behalf of the local authority and the guardian in support of her determination failed to persuade me otherwise.

28. It was of considerable significance that FW had instructed her own solicitor virtually throughout the care proceedings and that that solicitor, with her accumulated knowledge of FW, considered her to have sufficient understanding to instruct her in the new proceedings. The alternative view of the guardian and Ms Gaff also carried weight but, in preferring their view to the view of Ms Donn, the judge needed to explain herself comprehensively, it seems to me, including demonstrating that she had taken account of matters that may have led to the different assessments of FW's understanding. These included the potentially inauspicious circumstances in which the meeting between the guardian, Ms Gaff and FW, which it seems was a significant part of the foundation for their view, had taken place. FW can have been in no doubt that the guardian's view was diametrically opposed to hers and, furthermore, the meeting took place at her school where she did not wish to be visited. As Ms Giz submitted, it may not be at all surprising that, given those circumstances, she did not engage fully with the guardian and Ms Gaff in the way that she can engage with Ms Donn, in whom she has confidence.

29. Mr  O'Brien for the local authority pointed to §7 of the judgment where the judge said:

"I take into account that Ms Donn is an experienced family solicitor with a view that FW is capable of giving instructions, that FW went to her solicitor to give instructions and that FW was separately represented in the care proceedings at a younger age."

He submitted that this was sufficient to show that the judge had given proper weight to Ms Donn's view. However, in my view, more was needed on this subject in this particular case. It is fair to say that, as Mr O'Brien rightly observed, the information now available to us about how FW appeared to Ms Donn is fuller than that which was available to the judge but, to my mind, the information that was available on 1 April 2016 was enough to provoke a closer examination than is to be found in the judgment. This needed to include not just a statement that Ms Donn's views had been taken into account but an explanation of what the judge made of Ms Donn's view when taking it into account and why greater weight was given to the assessment of the guardian and Ms Gaff. The unfortunate absence of any representation of FW on 1 April must have contributed to this weakness in the judgment. Had Ms Donn or Ms Giz been present, the judge would have been able to explore the basis of Ms Donn's conclusion that FW had sufficient understanding and would, no doubt, have learned of the matters which subsequently found their way into Ms Donn's 19 May statement. I fear that the representation problems encountered in this case may not be uncommon, given the public funding situation. We are fortunate that legal representatives are prepared to give their services pro bono to fill the gap in cases such as this. If pro bono representation is to be an effective stop-gap, however, efforts will have to be made to enable the pro bono representatives to participate in the hearing at which the issue of separate representation is determined.

30. Turning to the criticism that the judge failed to explain what had changed since the care proceedings, during which FW was separately represented, I acknowledge that it was possible that FW's understanding had diminished since that time to the point where she was no longer able to give instructions, but I would expect a judge to be very slow to reach such a conclusion where a child has had the experience of instructing a solicitor over a number of months, and is now over a year older, approaching 16 years of age, and about to sit her GCSEs. A number of factors seem to have contributed to Judge Williams' view about this. She appears to have been influenced by material presented by the guardian, which included the guardian's description of FW's presentation (low mood, without animation in speech or general demeanour), the guardian's sense that FW seemed to have accepted responsibility for her parents' well-being, her concern that the parents have a hold over FW, and her view that FW does not appear to accept the risks that it has been found her parents pose. It was in this connection that the judge also referred back to the Great Ormond Street assessment of FW as having an undeveloped sense of herself and being in need of psychotherapy to assist her to develop an individual and autonomous sense of herself. She did not consider that the risks identified in the care proceedings had been mitigated, given that FW had had no therapy and was effectively still in the care of her parents, and essentially accepted the view taken by the guardian and Ms Gaff about FW's inability to hold views independent of her parents and about her being used by her parents to conduct the litigation for them.

31. It is unfortunate that the judge referred in §14 of her judgment (set out at §15 above) to FW not having been "able to demonstrate" that she was "not being used or required by her parents to conduct litigation". I do not think it is helpful to speak in terms suggestive of there being a burden of proof on FW when what is required is for the court to review all the material available, at what may be quite an early stage in the proceedings, to see whether it "considers" (to adopt the words of Rule 16.29(2)) that the child is able, having regard to his or her understanding, to give instructions. This is particularly so given that the child may not be represented at court at the stage when separate representation is being considered by the judge, because of funding difficulties such as those which arose here. However, whilst it is worth mentioning this for future reference, I do not set too much store by this choice of words by the judge in this particular case. I doubt that it would, alone, have persuaded me to allow the appeal against her orders. As I said earlier, it is a combination of the difficulties identified by Ms Giz that led me to the view that the orders would have to be overturned, perhaps most prominent amongst them being the judge's treatment of Ms Donn's opinion about FW's understanding.

32. It is necessary for me to say a little more about the judge's approach to FW's alignment with her parents. I can well understand the judge's concern that FW was, to put it in slightly different words from those chosen by the judge, the parents' mouthpiece or agent. Nevertheless, I think that caution needs to be exercised, in a case with this history, before allowing such a conclusion to deny a child of FW's age her own solicitor on the basis that she lacks sufficient understanding. For a start, the fact that the child's view coincides with the parents' view does not necessarily mean that it is not her own view. Most people's views are influenced by the views of others in one way or another and it can be very difficult to decide reliably whether or not someone is simply an agent for another person. Moreover, in a case such as the present, things are likely to be complicated by the fact that someone in FW's position may well have her own entirely independent view about certain aspects of the case, such as the impact that staying in foster care is having on her ability to work for her examinations but, at the same time, be influenced by her parents in her thinking about other things, for example the past. She may be acting under the influence of her parents in bringing the litigation but also wishing to play an active part in it to put her own view across.

33. Secondly, the fact that the child's views are considered to be misguided in some way does not necessarily mean the child does not have sufficient understanding to instruct a solicitor. Self-evidently, the question of separate representation will normally only come up if the child materially disagrees with the guardian's view about his or her welfare, but that disagreement with an independent professional assessment of what is good for him or her is not sufficient to lead to a conclusion that the child lacks sufficient understanding. In so far as a lack of understanding is perceived to arise from the child's unwillingness to accept the findings already made, it has to be remembered that adults with full understanding adopt similar positions. Mr O'Brien submitted that it is relevant in this respect that the rules about the representation of children incorporate an element of paternalism which is not present in the rules governing the litigation capacity of adults. I accept that. However, I do not think that this leads inexorably to the conclusion that a child who denies facts found by the court lacks sufficient understanding to instruct a solicitor. Accepting the risks that have been found to exist may not be the start and finish of the case. Here, as can be seen from the later material made available by Ms Donn, there were other matters that FW wished to set in the balance against the risks that others considered existed in the care of her parents, for example her unhappiness in foster care and the effect that her loneliness there was having on her concentration at school, which she thought the social worker had failed to take into account.

34. Thirdly, there is a danger, in my view, that if the court starts to get too embroiled in a consideration of matters such as whether the child accepts the risks and what degree of influence is being exerted by his or her parents, it will be diverted, at an early stage in the proceedings, into satellite litigation designed to ascertain the facts about these things which may, in fact, be a significant part of the contentious subject matter in the substantive proceedings. This was something to which Booth J referred in Re H (A Minor)(Role of Official Solicitor) (supra), a case in which the evidence pointed to strong influence by a particular man on the child's views but the judge was satisfied that he nonetheless had sufficient understanding to participate as a party in the proceedings. Booth J commented (at page 556) that "[t]o make a finding that H's ability to think for himself has been so far overborne by Mr R in my judgment would be to run the risk of prejudging on insufficient evidence an issue which may be crucial to the outcome of the case."

35. I note that the judge took account of the risk of harm to FW from direct participation in proceedings. In so doing, she rightly had in mind what Thorpe LJ had said in Mabon v Mabon. In my view, however, some caution is required when taking feared harm of this kind into account as part of an assessment of understanding. There is a danger that, when considering the degree to which a child has been influenced in his or her thinking or otherwise manipulated, and/or when looking at the harm that may be caused by direct participation, a judge strays into a welfare assessment when the question for determination is not, in fact, governed by the child's best interests. Furthermore, as in this case, there will often be a risk of harm not only from participating in the litigation but also from not participating, as Thorpe LJ stressed in Mabon v Mabon in what the President in Re F [2016] (supra) described as his "characteristically prescient judgment" (see §36 of Re F). Judge Williams acknowledged this in general terms, saying that she accepted that the risk of harm from participating had to be "balanced against a child's need for knowing about the proceedings and participating in them". But it is important to think carefully about what not being able to instruct her own chosen solicitor actually meant for FW in practical terms. Quite apart from the danger of further disaffection being generated by the decision and the fact that she would not have her own independent voice in the proceedings, she also lost the opportunity to have a continuing dialogue, with a professional in whom she had confidence, about the risks that the social workers and the guardian considered she faced in the care of her parents, to receive advice about them, and to have a discussion about how those risks should be balanced with the risks that she perceived there to be in forcing her to return to foster care. For a girl of nearly 16 years of age, who had had past experience of her own legal representation, this would potentially have been of great benefit. 

36. Sometimes there will be a clear answer to the question whether the child is able, having regard to his or her understanding, to give their own instructions to a solicitor. In cases of more difficulty, the court will have to take a down to earth approach to determining the issue, avoiding too sophisticated an examination of the position and recognising that it is unlikely to be desirable (or even possible) to attempt to assemble definitive evidence about the matter at this stage of the proceedings. All will depend upon the individual circumstances of the case and it is impossible to provide a route map to the solution. However, it is worth noting particularly that, given the public funding problems, the judge will have to be sure to take whatever steps are possible to ensure that the child's point of view in relation to separate representation is sufficiently before the court. The judge will expect to be guided by the guardian and by those solicitors who have formed a view as to whether they could accept instructions from the child. Then it will be for the judge to form his or her own view on the material available at that stage in the proceedings, sometimes (but certainly not always) including expert opinion on the question of understanding (see Re H (A Minor)(Care Proceedings: Child's Wishes) (supra) at page 450). Understanding can be affected by all sorts of things, including the age of the child, his or her intelligence, his or her emotional and/or psychological and/or psychiatric and/or physical state, language ability, influence etc. The child will obviously need to comprehend enough of what the case is about (without being expected to display too sophisticated an understanding) and must have the capacity to give his or her own coherent instructions, without being more than usually inconsistent. If the judge requires an expert report to assist in determining the question of understanding, the child should be under no illusions about the importance of keeping the appointment with the expert concerned. It is an opportunity for the child to demonstrate that he or she does have the necessary understanding and there is always a risk that a failure to attend will be taken to show a failure to understand.    

37. The judge did not have an easy task in determining whether FW should be allowed to instruct her own solicitor and she was not helped by having to do so without the benefit of FW's position being represented before her on 1 April 2016. However, for the reasons set out in this judgment, I concluded that she reached the wrong decision. Things went awry, in my view, by virtue of the judge giving insufficient weight to matters such as FW's age, her history of instructing her own solicitor for a considerable period of time in the care proceedings, and the views of Ms Donn who represented FW then and considered that she had sufficient understanding to instruct her in the fresh proceedings, and setting too much store on the entirely understandable concerns about parental influence and on FW's denial of facts found in relation to the past and risks which it had been established there would be in the future. We have, of course, had the benefit of full submissions from all sides on the question of FW's understanding, plus the extra material contained in Ms Donn's May 2016 statement. As a result, I was satisfied that FW is able, having regard to her understanding, to give her own instructions and that she should be permitted to do so. The appointment of Ms Gaff as her solicitor should therefore be terminated and she should be able to instruct Ms Donn in her place.

38. It was inevitable, in these circumstances, that the substantive orders made by the judge following her refusal to permit separate representation should be overturned. In fact, the recovery order made on 1 April 2016 had been overtaken by a recovery order made on 3 May 2016 and, in the draft order provided by the parties, provision was made for the setting aside of that later recovery order. Although the 3 May 2016 order was not, in fact, the subject of an appeal, I would be prepared to make an order in relation to it, in view of the decisions taken in the appeal. The judge's dismissal of FW's application for the discharge of the care order also needs to be set aside. Both the local authority's application for a recovery order and FW's application for the discharge of the care order will now, therefore, need to be reheard. 

Lord Justice Tomlinson:
39. I entirely agree.   

40. On the main issue on which my Lady has given detailed and helpful guidance to judges working in this jurisdiction, the judge's principal error may be very simply summarised.  She confused welfare with understanding. 

41. At paragraph 36 above Black LJ stresses, as would I, the importance of the child keeping the appointment with the expert concerned in the event that the court considers that it needs an opinion from an independent expert to assist in determining the question of understanding.  I would hope that such cases will be rare.  I doubt if the court needed such assistance in the circumstances of this case, where the judge had available to her the objective views of an experienced and respected solicitor whose involvement in the case had already been considerable, and whose work and approach the judge had been able to appraise.  But in cases where expert assistance is required, the court needs to be very careful to ensure that the child understands the purpose of the consultation with the expert.  Particularly is that so where the "child" is an intelligent teenager.  The word "capacity" is a legal term of art the precise meaning of which may elude many of full age and capacity.  Similarly, it is wise to explain in clear terms that being required to consult a psychiatrist does not involve casting aspersions upon the child's mental health.  Beyond ensuring that FW was supplied with a copy of the Order, which was not helpfully worded in this regard – see paragraph 12 above – the court here delegated to the solicitor instructed by the guardian the task of explaining by letter to FW the purpose of her meeting with Dr Butler.  The task was thus entrusted to those in whom FW had no confidence and whom she knew to be attempting to frustrate her wishes.  This was a predictably disastrous strategy.  At paragraph 14 above Black LJ has quoted parts of the letter sent by the guardian's solicitors to FW.  That letter also recounted that the guardian and Ms Gaff had "some concerns" about FW wishing to instruct Ms Donn, without specifying what those concerns were.  It is true that the solicitors added the word "understanding" in parenthesis by way of explaining the purpose of the judge's order, but in the circumstances I am not surprised that FW did not attend the meeting.  She had already as a younger child demonstrated her relevant understanding, she probably took the view that she had no need of  the involvement in her life of a psychiatrist and she was in any event understandably preoccupied with final preparations for GCSE examinations.  The reported comment of her grandmother concerning psychological assistance is exactly the sort of thing to be expected unless a comprehensive explanation is given as to the purpose of a meeting such as this.  The present appeal will serve a useful additional purpose if this case is henceforth recognised as an object lesson in how not to go about supplying such an explanation.