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CS v SBH & Ors [2019] EWHC 634 (Fam)

Appeal against an order dismissing the mother’s application for a variation of an order that the child should live with the father.

Williams J was concerned with an appeal in respect of an order made by HHJ Meston QC on 6 November 2018 which dismissed the mother's application for variation of an earlier order which provided that the child should live with her father. The appeal took an 'unusual route' requiring determinations as to a preliminary issue defined it the order as:

'UPON the judge listing a hearing to make directions upon the preliminary issue as to Mr Burrows's locus to pursue this application for permission to appeal on behalf of the child having regard to whether the child may instruct a solicitor within this appeal pursuant to Family Procedure Rules 2010 [FPR 2010] r 16.6(3)(b) or r 16.6(5) ('the preliminary issue').'

In the proceedings at first instance the child had a Children's Guardian ('the Guardian'), who had also acted in earlier proceedings. An issue arose as to which solicitor should be appointed by the Guardian. In May 2018 the child was taken by her maternal grandparents to see a solicitor Ms Hopkin, who assessed her as competent to instruct a solicitor. Ms Hopkins wrote to the court asking that she be appointed as the child's solicitor albeit with a guardian. The Guardian however, instructed Ms Coyle.

At a hearing on 3 July 2018 HHJ Meston refused Ms Hopkin's application for Ms Coyle's appointment to be revoked and for her to be appointed. No appeal was lodged in relation to this decision. In October 2018 Ms Coyle met with the child separately from the Guardian specifically to assess her competency. Ms Coyle concluded that the child was not competent to instruct her. In January 2019 Ms Coyle received an email purporting to come from the child stating that she did not want her as a solicitor anymore and would like Mr Burrows and Ms Hopkin.

A number of preliminary matters arose (paras 2-23). As the arguments developed Williams J distilled the two particular issues as follows:

Firstly whether an appeal constituted new proceedings, such that the provisions of FPR 16.6 (3) applied, in which case Ms Hopkin's opinion on whether the child was able having regard to her understanding to give instructions in relation to the appeal appeared to be determinative; and

Secondly if the appeal was part of a continuation of proceedings whether pursuant to FPR 16.6 (5) and (6) the court considered that the child has sufficient understanding to conduct the appeal concerned without a children's Guardian. This involved consideration of both the law and the evidence.

Ms Hopkins on behalf of the child argued that the appeal constituted new proceedings. Father and the solicitor instructed by the Guardian both argued that the appeal was part of a continuum of proceedings and that the child could only conduct the proceedings without the Guardian if the court was satisfied she had sufficient understanding so to do. Ms Coyle and the Guardian were both of the opinion that the children did not have sufficient understanding to conduct proceedings.

Legal Framework

Williams J surveyed a number of reported decision in relation to the participation of children in appeals (including Re LC (International Abduction: Child's Objections to Return) [2013] EWCA Civ 1058, and by the Court of Appeal in Re M (Republic of Ireland) (Child's Objections)(Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074), noting that (a) most of these cases have been in the context of the children either seeking to participate for the first time at appellate level or seeking to appeal against a refusal to joint them at first instance; and, (b) the cases consider the position at Court of Appeal level where the CPR and not FPR apply (which apply to appeals from a circuit to the High Court).

The relevant legal framework, principally Part 16 of the FPR, and the arguments employed in support of the respective positions are set out in detail at paragraphs 27 to 41 of the judgment.

In summary:

• If the Court concluded that the child has capacity she could, if the case is a 16.6(3)(i), instruct Ms Hopkin or if it is a 16.6 (5 and 6) one she could either continue with Ms Coyle or apply under 16.29(7) for Ms Coyle's appointment to be terminated and then go on to appoint Ms Hopkin under 16.6(3); or

• If the Court concluded she does not have sufficient understanding to instruct but the appeal is fresh proceedings the Court would have to consider appointing a Guardian pursuant to FPR 16.6 (10); or

• If the Court concluded she does not have sufficient understanding and the appeal is a continuation of proceedings then the Guardian remains appointed to represent the child and the solicitor would be obliged to accept instructions from the Guardian.

Decision

After considering matters which suggest that an appeal is fresh proceedings (para 44) and also matters which suggest that the appeal is part of a continuum of proceedings (para 45), in addition to Re M (BIIa Article 19: Court First Seised) [2018] EWCA Civ 1637, Williams J concluded that an appeal is a continuation of the first instance proceedings. Thus, it is another step or stage in those proceedings and therefore the provisions of FPR 16.6(5) apply.

Williams J concluded that even if the appeal constitutes separate proceedings, it is ultimately a matter for the court to decide whether the child has understanding or sufficient understanding to conduct proceedings without a Guardian.

In relation to the meaning of 'sufficient understanding' to conduct the proceedings Williams J considered a number of authorities including: Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7; Re S (A Minor) (Independent Representation) [1993] 2 FLR 437; Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278;  Re N (Contact: Minor Seeking Leave to Defend and Removal of a Guardian) [2003] 1 FLR 652; Mabon v Mabon [2005] EWCA Civ 634; and, Re W (A Child) (Care Proceedings: Child's Representation) Practice Note [2016] EWCA Civ 1051 (in particular Lady Justice Black's summary at paragraph 36).

Williams J set out the factors to be considered in determining whether the child has sufficient understanding to give instructions to pursue an appeal and conduct the appeal (paragraph 64) and addressed each of those factors in relation to the child (paragraph 79) after considering the evidence before him (paragraphs 66-76).

Overall, Williams J concluded that:

'Giving all due weight to the child's personal autonomy and having regard to the welfare implications of her not being able to instruct a solicitor to pursue her appeal overall and taking account of all of those matters which weigh in favour of the conclusion that she does have sufficiency of understanding I am quite clear that the factors which support the conclusion that the child does not have sufficient understanding substantially outweigh those pointing the other way. Inevitably the evaluation is more an art than a science and the weight to be given to each component cannot be arithmetically totted up. The overall impression that clearly emerges is one of a child who does not have sufficient understanding to conduct the appeal without a children's Guardian. That is not to say that Ms Hopkin's initial evaluation was wrong; it has to be looked at in the light of the totality of the material available. The test in FPR 16.6 (6) is not met. My conclusion would be the same as if I were considering the test under 16.6 (3) as to whether the child is able having regard to her understanding to give instructions in relation to the appeal.'

The effect of the decision is that the child could not pursue the appeal without a children's Guardian, who remained appointed and who provided instructions to Ms Coyle, who is obliged to conduct proceedings in accordance with those instructions. Although not determining the application for permission to appeal, Williams J observed that none of the grounds immediately struck him as having a realistic prospect of success.

Summary by Emily Ward, barrister and Deputy Head of Family Law, Broadway House Chambers

For the full judgment click here