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Ensuring Children Are Represented

David Boyd considers the current position and examines some future developments in the representation of children in family proceedings

Ensuring Children Are Represented

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David Boyd, Barrister, Coram Chambers

This article reviews legislative provision for the representation of children in family proceedings (1) in England and Wales and considers the potential impact of the implementation of section 122 of the Adoption and Children Act 2002.

Basic rules and underlying principles
The present legislative provision for representation of children in family proceedings is founded upon a synthesis of common law, international obligation and pragmatism. The basic rule is that in court proceedings children are treated as being under disability and not permitted to participate in their own right. This approach unfortunately appears to place children on a par with patients who by reason of disability are incapable of managing and administering their own affairs. Unless rules provide otherwise, a person under disability may begin and prosecute family proceedings only by his next friend and may defend such proceedings only by his guardian ad litem (2). There are many more overtly positive reasons would be preferable for providing children with a system of representation in family proceedings.

Rule 9.2A of the Family Proceedings Rules 1991
On the face of it the law does permit children to participate in proceedings in their own right if they are considered to be of sufficient age, intelligence, maturity and understanding. In private law proceedings a minor may sue without a next friend or defend without a guardian ad litem where leave has been granted or where a solicitor has accepted instructions having considered the child's understanding and concluded that the child is able to give instructions in relation to the proceedings (3). There is also provision for a child represented in proceedings by a next friend or guardian ad litem, to apply for their removal in order to enable the child to participate in his or her own right after proceedings have commenced (4).

These provisions perhaps reflect what Lord Scarman once referred to as 'the underlying principle of the law' which

'was exposed by Blackstone and can be seen to have been acknowledged in the case-law. It is that the parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.'(5)

Whether or not they are able to participate in their own right in court proceedings affecting them, all children capable of forming their own views are entitled to have them heard and given due weight in such proceedings. The United Nations Convention on the Rights of the Child provides that:

'12.1 Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

12.2 For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law.'

The provisions of Art 12(1) are said to be reflected in s 1(3)(a) of the Children Act 1989 which in private and public law proceedings requires the court to have regard in particular to the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding). CAFCASS officers, legal representatives and judges need constant vigilance to ensure that the application of s.1(3) in practice results in the views of the child being given due weight rather than mere lip service.

In Re W (A Minor)(Medical Treatment: Court's Jurisdiction) Lord Donaldson MR regarded it as self-evident that the paramountcy of the child's welfare or interests

'…involves giving them the maximum degree of decision-making which is prudent. Prudence does not involve avoiding all risk, but it does involve avoiding taking risks which, if they eventuate, may have irreparable consequences or which are disproportionate to the benefits which could accrue from taking them. I regard this approach as wholly consistent with the philosophy of section 1 of the Children Act 1989….' (6)

The case concerned the treatment of a 16-year-old girl with anorexia. In his judgment Lord Donaldson described adolescence as

'a period of progressive transition from childhood to adulthood and as experience of life is acquired and intelligence and understanding grow, so will the scope of the decision-making which should be left to the minor, for it is only by making decisions and experiencing the consequences that decision-making skills will be acquired. As I put it in the course of the argument, and as I sincerely believe, "good parenting involves giving minors as much rope as they can handle without an unacceptable risk that they will hang themselves."' (7)

Support for this sort of overall approach can be drawn from the right to respect for family and private life enshrined in Article 8 of the European Convention on Human Rights which is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (8). Art 8 also guarantees certain procedural rights to children as well as adults. The burden of Art 8 may require public authorities not only to permit representation but positively to ensure that children are represented when decisions affecting them are being taken (9). Consistent with these principles would be an approach to the representation of children and their views in family proceedings which not only safeguards their interests but also positively promotes the child having as much choice and autonomy as he can cope with as soon as he wants it. Children should as far as possible have choice, including a representative of their choice or none.

Current provision
It is debatable whether the arrangements in place under the current legislative provision in England and Wales for the representation of children in family proceedings measure up to the requirements of Art 12 of the UN Convention, ECHR Art 8 and the principles enunciated by Blackstone and Lords Scarman and Donaldson.

The Family Proceedings Rules 1991, No 1247 provide for children in private law proceedings:

Taken together, these provisions might be thought to provide the mechanism by which the State discharges its obligations under Art 12 of the UN Convention. What their mere existence does not do is satisfy children affected by private law Children Act proceedings, and who are capable of expressing their own views, that they have in fact been provided the opportunity to be heard in those proceedings. A report from a Cafcass officer acting as a Children and Family Reporter is obtained in only some cases. Few children are joined as parties and represented. Children are unlikely to be satisfied by anything less than personal experience of actually being heard either directly, or through a representative or appropriate body. Indeed, there has been a growing interest in whether children affected by family proceedings in England and Wales do feel their voice is effectively heard (15).

Interest has also focused recently on whether there is evidence to show a significant geographical variation in use by the courts of rule 9.5 to appoint a guardian ad litem in private law proceedings. As argued above, the State has international obligations to ensure that an appropriate body like CAFCASS has the resources to represent children joined as parties in private law cases. To meet these expectations CAFCASS needs to continue transforming itself into an organisation that welcomes and seizes upon every opportunity to represent children rather giving the impression it looking for ways to reduce the number of officers of the service being appointed as rule 9.5 guardians.

Rule 9.5 gives the court a discretion to appoint a CAFCASS officer to be guardian ad litem if it appears to the court that it may be in the best interest of any child to be made a party to the proceedings. In contrast, in public law proceedings the child is automatically a party and s.41 of the Children Act 1989 requires the court in specified proceedings to appoint an officer of CAFCASS as children's guardian (16) for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests. In practice it is extremely rare indeed for the court to consider it unnecessary to appoint a children's guardian in acre and other public law proceedings.

S.122 of the Adoption and Children Act 2002
The general duties of a children's guardian in public law proceedings are set out in s.41 of the Children Act 1989 which requires the children's guardian to safeguard the interests of the child in a manner prescribed by rules of court. The general powers and duties of officers of CAFCASS are set out in rule 4.11 and the additional powers and duties of the children's guardian are contained in rule 4.11A.

What is provided for by s.122 of the Adoption and Children Act 2002 is that the proceedings which may be specified under s.41(6) of the 1989 Act include (for example) proceedings for the making, varying or discharging of a s.8 order. Rules of court may make provision for children to be separately represented in proceedings under the Children Act 1989. (17)

Currently there is no sign of s.122 being implemented or the appropriate rules being promulgated. Nor has CAFCASS yet secured the resources likely to be needed to provide officers of the Service in any numbers to act as children's guardians in private law proceedings.

Practitioners might be forgiven for feeling that s.122 has been left suspended somewhere in a hall of mirrors filled with smoke. One effect of applications for s.8 orders becoming designated proceedings would be that the provisions as to disability in Part IX of the Family Proceedings Rules 1991 would cease to apply (18). A further implication is that in specified proceedings there is no procedure, and the child has no right to apply to discharge his children's guardian. In certain circumstances a child of sufficient understanding to give instructions might be legally represented separately from his children's guardian (19). It should not be forgotten that a CAFCASS officer appointed as a rule 9.5 guardian ad litem in private law proceedings already has all the powers and duties of a children's guardian and rules 4.11 and 4.11A apply to him as they apply to a children's guardian appointed under section 41 of the Children Act 1989. Organisations like Cafcass and the National Youth Advocacy Service (NYAS) need the resources to ensure children are represented whether or not s.122 is now implemented.

Notes

1 For the purposes of this article 'family proceedings' has the meaning given in s.8(3) of the Children Act 1989 and r 1(2) of the Family Proceedings Rules 1991, No 1247
2 Family Proceedings Rules 1991, r 9.2
3 Family Proceedings Rules 1991, r 9.2A(1)
4 Family Proceedings Rules 1991, r 9.2A(4)
5 Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] AC 112 per Lord Scarman at 186
6 Re W (A Minor)(Medical Treatment: Court's Jurisdiction) [1993] 3 WLR 758 per Lord Donalsdon MR at 770
7 Re W (A Minor)(Medical Treatment: Court's Jurisdiction) [1993] 3 WLR 758 per Lord Donalsdon MR at 770
8 Botta v Italy (1998) EHRR 241 at para [32]
9 See Making Sure the Child is Heard by The Honourable Mr Justice Munby, [2004] Fam Law 338
10 Family Proceedings Rules 1991, r 9.2
11 Family Proceedings Rules 1991, r 9.2A(1)(b)(i)
12 Family Proceedings Rules 1991, r 9.2A
13 Family Proceedings Rules 1991, r 9.2A(4)
14 Family Proceedings Rules 1991, r 9.5
15 See for example Hearing the Children, edited by Lord Justice Thorpe and Justine Cadbury.
16 Family Proceedings Rules 1991, r 4.10
17 Adoption and Children Act 2002, s.122(2)
18 Family Proceedings Rules 1991, r 9.1(2)
19 In Re S (Independent Representation) [1993] Fam 263 per Lord Bingham MR at 273b