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The Separate Representation of Children: Part 2

Shiva Ancliffe reviews the law relating to the determination of whether a child should be separately represented in proceedings

Shiva Ancliffe, barrister Coram Chambers

This is the second and concluding part of two articles evaluating the separate representation of children. This article focuses on the progress in the participation of children in family proceedings and in particular it considers Article 12 of the United Nations Convention of the Rights of the Child (UNCRC).  The first article dealt with;

(1) The relevant rules in the FPR

(2) the court's ability to override the solicitor's evaluation of competence

(3) "Gillick" competence

(4)  the evaluation of "sufficient understanding"

(5) an overview of the changing attitude over the years towards children's participation in proceedings and the autonomy and consequential rights of children

Article 12 - what does it say?

Article 12 of the Convention on the Rights of the Child which provides:

"1. States 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.

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 UNCRC is not incorporated into domestic law in the UK (in the same way that ECHR is through the HRA 1998) but, quoting directly from the report of the parliamentary Joint Committee on Human Rights on the UK's compliance with the UN Convention on the Rights of the Child (March 2015), its significance to domestic law is clear;

"The United Nations Convention on the Rights of the Child (UNCRC) is the most universally accepted of all UN human rights instruments and the most comprehensive in its promotion of children's rights—civil, political, economic, social and cultural— informing other human rights standards through a framework of state responsibilities applicable to all children within signatory states' jurisdictions.

… Moreover, while the Convention has not been incorporated into UK law and is therefore not directly justiciable in UK courts—that is to say, an individual cannot go to a UK court to complain about a breach of any of the rights in the Convention—the conclusions and recommendations of the UN Committee, while strictly speaking not legally binding, do provide an authoritative interpretation of the individual treaty obligations which are themselves legally binding on the UK."

The near universal ratification of UNCRC makes it highly significant in international law and reference to it in any domestic case can only serve to refocus attention specifically towards the child.  The court itself has repeatedly referenced UNCRC in children cases.

In the case of Re K (A Child) [2011] EWHC 1082, Mr Justice Peter Jackson, as he then was, recognised the significance of Article 12 in his judgment;

"3 - The participation of children in legal proceedings about their future is a topic that evokes a range of responses from adults, and also from children. 

4. The majority adult view has moved a long way from the days when children were seen but not heard, but a feeling that it is not good for children to be personally involved in every aspect of our adversarial system is still deep-rooted.  Proper concerns include a fear that direct exposure to conflict will harm already vulnerable children, a worry that greater participation will leave children open to manipulation by unscrupulous parents, and a feeling that the presence of a child in a courtroom is somehow inappropriate.

5. Article 12 of the United Nations Convention on the Rights of the Child 1989, which carries moral, though not legal, authority (emphasis added), provides that: (…article 12 is set out in the judgment but it is not repeated here, please see earlier for the full text of Article 12).

6. We are very familiar with children being heard indirectly.  Their views are gathered and their points of view argued by trained adults.  In proceedings brought by the state, the repre-sentation of children by a Children's Guardian and solicitor is an indispensable safeguard.  In acute disputes within the family, the need for children to be separately represented has been increasingly recognised in recent years: e.g. Mabon v Mabon [2005] 2 FLR 1011."

Article 12 was also referred to by Baroness Hale in Re M (Abduction: Zimbabwe) [2007] UKHL 55;

"46. In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views."

Going further back in time to Mabon v Mabon [2005] EWCA Civ 634 Thorpe LJ made the following observation at paragraphs 28-29:

"The guidance given by this court in Re: S cited above on the construction of rule 9.2A is now twelve years old. Much has happened in that time. Although the United Kingdom had ratified the UN Convention some fifteen months earlier, it did not have much impact initially and it is hardly surprising that it was not mentioned by this court on the 26th February 1993. Although the tandem model 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.

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 are 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

Thus the recognition and relevance of Article 12 has been firmly established in domestic cases. The need for the court to seek to interpret domestic legislation consistently with its obligations under the UNCRC is unquestionable. The jurisprudence rightly shows a growing shift towards the autonomy of the child in court proceedings. Some may say the progress is still too slow but there is no dispute about the direction of travel.

Evaluation of a child's understanding of proceedings (continued)

The first of these two articles, I reviewed William J's judgment in CS v SBH & Ors [2019] EWHC 634 (Fam), in which he considered the leading authorities on the separate representation of children.

Prominent amongst those authorities is Re: W (a Child) (Public Law proceedings: child's separate representation [2016] EWCA Civ 1051, Lady Justice Black leading judgement neatly encapsulates the evolution without setting it out fully;

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 develop-ments, 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 involve-ment 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 acknowledgement 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 Her Honour 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.

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) [1993] 1 FLR 440, at 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.

Returning briefly to William's J in Re CS, he comments;

"56 Lady Justice Black identified particular issues giving rise to difficulties in the evaluation of understanding as including:

i) The risk of placing too much weight in the evaluation of the child's understanding of allegations of influence or manipulation of the child by a parent,

ii) The fact that a child's views may be considered to be misguided does not necessarily mean the child does not have sufficient understanding to instruct a solicitor.

iii) The danger of the court becoming too embroiled in consideration of i) and ii) above such that it pre-judges what may be central issues in the substantive application.

iv) The need to balance the harm that might be caused by direct participation with the harm that might be caused by refusal of direct participation.


Thus, as Williams J tells us, there has been a shift away from a paternalistic approach in favour of an approach which gives significantly more weight to the autonomy of the child in the evaluation of whether they have sufficient understanding. The earlier authorities need to be approached with a degree of caution in terms of the level at which they set the 'bar' of understanding. The autonomy issue sounds both in pure 'understanding' terms and in welfare terms.

In drawing together conclusions for this article, what is clear is that the obligation of those that represent children, solicitors and guardian alike, cannot be under estimated. Time needs to be taken to ensure careful consideration and determination of capacity and an on-going review throughout the proceedings of the child's capacity to be separately represented if the child's view is at variance with their guardian. This has even greater resonance for example, when there is a placement plan of permanence outside the birth family in public law proceedings.

However, the divergence may on the face of it be less profound and involve, for example, a dispute on the frequency of contact. A child's view in relation to the frequency of contact with an absent parent is no less important. It will still require the same time and attention in terms of evaluation of capacity, if it differs from their guardian. Any decision regarding a child's future relationship with their birth family is likely to shape that relationship permanently with lifelong implications.

How these issues are raised and discussed with a child is left to the experience and expertise of the guardian and solicitor. Re CS reminds us of the factors to consider when undertaking the evaluation (see the first article). One must also bear in mind that the answers elicited from the child will often depend on how the questions are put. Engaging a child requires time and space to build a rapport.

Court proceedings, with their fast pace and 26-week timetable, do not naturally lend themselves to measured evaluation. Thus it is important that solicitors representing children and guardians remain mindful of the need to carefully consider the role of the child and their capacity and hold firm in the face of time pressure to undertake this task properly.