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Mabon v Mabon and Others [2005] EWCA Civ 634

Independent representation of articulate teenagers under FPR 1991, rule 9.2A allowed on appeal.

Mabon v Mabon and Others [2005] EWCA Civ 634

Court of Appeal: Thorpe, Latham and Wall LJJ (26 May 2005)

Summary
Independent representation of articulate teenagers under FPR 1991, rule 9.2A allowed on appeal.

Background
This appeal arose out of residence order proceedings, commenced in November 2003, relating to six children of the family whose parents had separated in June 2003. A CAFCASS officer was appointed guardian of all six children, and they were joined as parties to the action to be represented by their guardian. At the end of the fact-finding trial but before the disposal hearing, the three eldest children, aged 17, 15 and 13, applied under Family Proceedings Rules 1991 ('FPR 1991'), rule 9.2A(4) for leave to represent themselves independently in the action. The judge refused the application, on the basis that he could see little advantage to be gained from independent representation but many disadvantages, namely 'delay from the prolongation of the proceedings, unquantifiable emotional damage from contact with the material in this case, and exposure to the harshness of the litigation process'.

On appeal, it was submitted that the judge: had taken into account a number of irrelevant factors; had failed sufficiently to register the distinction between the completed fact-finding trial and the future disposal hearing; had repeatedly introduced welfare considerations as though the paramountcy principle applied; and had failed to treat each applicant separately.

The court considered the relevant provisions of the FPR 1991 – rules 9.2A and 9.5 – and reviewed the case-law arising under them, paying particular attention to the phrase 'sufficient understanding'. It also focused on the 'tandem model' that is used for the representation of children in the UK family justice system: first, the court appoints a guardian who will almost invariably have a social work qualification and very wide experience of family proceedings; he then instructs a specialist family solicitor who, in turn, usually instructs a specialist family barrister. While the court recognised that this model had many strengths and virtues, it considered that its approach was essentially paternalistic, and that at its heart lay the conflict between advancing the welfare of the child and upholding the child's freedom of expression and participation.

Judgment
Held, allowing the appeal and making the orders under rule 9.2A(4), that the judge was plainly wrong in reaching the conclusion that he did: this assessment was fortified by a report from a consultant child and adolescent psychiatrist, which was not available to the judge, that confirmed the sufficiency of the children's understanding.

In relation to the United Kingdom's obligations under Article 12 of the UN Convention on the Rights of the Child 1989 and Article 8 of the ECHR, the court also considered that judges needed to reflect the extent to which, in the 21st Century, there was a keener appreciation of the autonomy of the child and the child's consequential right to participate in decision-making processes that fundamentally affected his family life. Accordingly, in the case of these articulate teenagers, it was important to accept that the right to freedom of expression and participation outweighed the paternalistic judgment of welfare.

Comment by Tacey Cronin, Albion Chambers

Practitioners in Children Act cases will be familiar with Rule 9.2A FPR 1991, which allows minors to sue without a next friend or guardian, but the instances in which a child participates in proceedings without the buffer of a guardian are actually very rare. The Court recognises cases where the child disagrees with the Guardian and has sufficient understanding to participate. Whether or not the child has the necessary level of understanding is usually properly decided by the solicitor taking instructions: whether the child should then participate directly is a decision balancing the child's rights to be heard with the disadvantage of being closely involved with the decision making process. In this decision, Thorpe LJ recognises three categories of case in the authorities in which even a mature child's understanding may be uncertain – where the child is disturbed, emotionally or psychiatrically, where the child is influenced or manipulated by family members, and where the child is affected by the litigation to such an extent that objectivity is lost.

In this case, the three oldest of six siblings (aged 17, 15, and 13) sought to be separately represented and the application was refused by the Judge. The appeal was allowed: there was no doubt about their understanding and welfare has no place in assessing understanding: if participation would involve harm, the Judge is entitled to find that the child's failure to comprehend that risk demonstrates insufficient understanding, but must be alive to the risk of emotional harm from being excluded from the proceedings.

The decision is worth reading for the attention paid to the mechanisms for hearing children's voices, particularly in the light of Brussels III (Council regulation (EC) no. 2201/2003) – the revised Brussels II – which specifically requires the Court to certify whether the child was heard on granting a certificate under Article 39.

Read the full text of the judgment here