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The Separate Representation of Children: Part 1

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 article reviews the law relating to the determination of whether a child should be separately represented in proceedings. Such issues frequently arise in both public law and private law proceedings. The evaluation of whether the child is competent to instruct a solicitor directly and separate from their Guardian is highly significant, for example, in circumstances where the Guardian's recommendation is permanent separation from a primary care giver against the wishes of the child.

The child's right to have their voice independently heard and views placed before the court will come through the independently appointed Guardian until such point that they are deemed competent to dispense with their Guardian and instruct a solicitor directly.

In unspecified proceedings it is the child's solicitor alone who is tasked with evaluating the child's competence to understand the proceedings and to give instruction directly (see FPR 2010 r 16.6(3). In specified proceedings, such as care proceedings, the solicitor must take into account the views of the Guardian or direction of the court in this evaluation (see FPR 2010 r 16. 29 (3).

However, where a dispute arises as to a child's competence, the ultimate decision lies with the court (see para 38 CS v SBH & Ors [2019] EWHC 634 (Fam).

This is the first of two articles on this subject, which jointly will cover;

(1) The relevant rules in the FPR which depend on the type of proceeding before the court

(2) the court's ability to override the solicitor's evaluation of competence, if it considers it necessary on best interest grounds, the ultimate determination therefore lying with the court

(3) "Gillick" competence as the "cornerstone"

(4) the comprehensive consideration when the court is required to intervene in the evaluation of "sufficient understanding"

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


The FPR -Distinction to be drawn between specified proceedings and other proceedings

Let us look then to see what rules govern the determination of a child's party status and then consider their competence to instruct a solicitor separately.

Part 16 of the Family Procedure Rules 2010 sets out when a child will be made a party to proceedings.

The rule draws a distinction between a child who is the subject of and a party to 'specified proceedings; or to which part 14 applies' [adoption placement and related proceedings]' and other proceedings. Specified proceedings are defined in section 41(6) Children Act 1989 and include care proceedings and many linked public law proceedings under Part IV of the Children Act 1989. Section 8 proceedings do not attract the automatic party status afforded by FPR 12.3 and the automatic appointment of a children's Guardian afforded by FPR 16.3. Pursuant to FPR 16.2 (1) 'the court may make a child a party to proceedings if it considers it is in the best interests of the child to do so.'

If the child is made a party to proceedings pursuant to FPR 16.2, the rules applicable to the child's party status and the appointment of a Children's Guardian are distinct from those which apply if the child becomes a party as a result of the proceedings being 'specified proceedings.'

A child as party in specified proceedings is governed by r16.3 (e.g. care proceedings)

A child can be joined as a party in proceedings not being specified, or to which part 14 applies, by virtue of r 16.4 (e.g. private law section 8 applications)


R. 16.6 is important and provides for circumstances in which a child does not need a children's guardian or litigation friend

(1) Subject to paragraph (2), a child may conduct proceedings without a children's guardian or litigation friend where the proceedings are proceedings –

(a)     under the 1989 Act;

(b)     to which Part 11 (applications under Part 4A of the Family Law Act 1996 or Part 1 of Schedule 2 to the Female Genital Mutilation Act 2003) or Part 14 (applications in adoption, placement and related proceedings) of these rules apply;

(c)     relating to the exercise of the court's inherent jurisdiction with respect to children; or

(d)     under section 55A of the 1986 Act,

and one of the conditions set out in paragraph (3) is satisfied.

(2) Paragraph (1) does not apply where the child is the subject of and a party to proceedings

(a)     which are specified proceedings; or

(b)     to which Part 14 applies.

(3) The conditions referred to in paragraph (1) are that either –

(a)     the child has obtained the court's permission; or

(b)     a solicitor –

(i)     considers that the child is able, having regard to the child's understanding, to give instructions in relation to the proceedings; and

(ii)     has accepted instructions from that child to act for that child in the proceedings and, if the proceedings have begun, the solicitor is already acting

Therefore, where a solicitor considers the criteria set out in subparagraphs (i) and (ii) of FPR 16.6(3)(b) are met, the child may conduct proceedings without a children's Guardian and the court's endorsement of that is not required.


The most important duties of a solicitor acting for a child are contained in r16.29 which provides:

(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 in-structions 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.' 

The court's ability to override a decision on a child's ability to be separately represented:

The court retains the ultimate decision making power to decide if a child requires a Guardian and has sufficient understanding to act without one.

In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA Court of Appeal (Sir Thomas Bingham MR, Waite and Staughton LLJ) specifically considered the effect of the identically worded predecessor to FPR 16.6 (3) (b)(i) namely FPR 1991 9.2A (1) (b) (i). The Court of Appeal considered that taken together with FPR 1991 9.2A (10) that the court retained the ultimate right to decide whether a child required a Guardian or not. Lord Justice Waite said

'...if the rule is to be construed according to the whole tenor of the Act and its subsidiary legislation, it must in my view be taken to reserve to the court the ultimate right to decide whether a child who comes before it as a party without a next friend or guardian has the necessary ability, having regard to his understanding, to instruct his solicitor'

These views were recently reiterated by Williams J in CS v SBH & Ors [2019] EWHC 634 (Fam)

"I consider that interpretation is fortified by the interpretive assistance provided by Article 3 of the United Nations Convention on the rights of the child requires that the best interests of a child be a primary consideration in any decision affecting a child: See Rayden and Jackson, Volume 2 'Children' Paragraph 30.58 and the cases cited there. It seems clear to me that it is in the best interests of a child that the court remain the ultimate arbiter of whether the child has understanding or sufficient understanding to act without a Guardian for the reasons identified by Mr Holman in Re CT as to the circumstances in which a solicitor's view might not be reliable. The court may raise the issue of its own motion and make the determination under FPR16.6(10)."


Evaluating the child's capacity to sufficiently understand the proceedings:

Although now more than three and a half decades old and centred on medical consent, Gillick remains good law and the central guiding principle for determination of competence.

In CS v SBH & Ors [2019] EWHC 634 (Fam), Williams J reviewed the law.

Para 38 "Although the subject matter of the case was the child's ability to consent to medical treatment the decision of the House of Lords in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 [1986] AC 112 remains the cornerstone of our current approach to questions relating to the capacity or competence of a child or young person to take decisions for themselves. Whilst the court retains the ability to, in effect, override a child's 'decision' where it considers that decision is not in the child's best interests that is a quite separate matter to the issue of whether the child is competent. Lord Scarman observed:

[186] The underlying principle of the law was exposed by Blackstone and can be seen to have been acknowledged in the case law. It is that 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.

[188] … The House must, in my view, be understood as having in that case accepted that, save where statute otherwise provides, a minor's capacity to make his or her own decision depends upon the minor having sufficient understanding and intelligence to make the decision and is not to be determined by reference to any judicially fixed age limit…

[189] …I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances."

As William's J observes, the key expression which emerges from those passages but which are reflected in the judgment of Lord Fraser also are 'sufficient understanding and intelligence' to make the decision."

Para 52. In Re S (A Minor) (Independent Representation) - [1993] 2 FLR 437 the Court of Appeal considered the House of Lords judgments in Gillick and specifically with reference to the expressions 'understanding' or 'sufficient understanding' under FPR 9.2A the 1991 rules said

(3) The tests in paras (1)(b)(i) and (6) are framed with reference to the child's understanding, not his age. In the ordinary way it is no doubt true (at least of children) that understanding increases with the passage of time. But the rule eschews any arbitrary line of demarcation based on age, and wisely so. Different children have differing levels of understanding at the same age. And understanding is not an absolute. It has to be assessed relatively to the issues in the proceedings. Where any sound judgment on these issues calls for insight and imagination which only maturity and experience can bring, the child to the court and the solicitor will be slow to conclude that the child's understanding is sufficient.

At para 54 Williams J relies on the following in Re N (Contact: Minor Seeking Leave to Defend and Removal of a Guardian) [2003] 1 FLR 652 Coleridge J at 656 quoting from an earlier judgment,

"The most helpful encapsulation of the case-law I find to be that of Booth J in the case of Re H (A Minor) (Guardian ad Litem: Requirement) [1994] Fam 11, sub nom Re H (A Minor) (Role of Official Solicitor) [1993] 2 FLR 552 reading from 13 and 554H respectively. She said this:

'The approach to be taken by a court to an application such as this was fully canvassed by the Court of Appeal in Re S (A Minor) (Independent Representation) [1993] 2 FLR 437, in which judgment was delivered on 26 February 1993. The test is clear. The court must be satisfied that H, in this instance, has sufficient understanding to participate as a party in the proceedings without a guardian ad litem. Participating as a party, in my judgment, means much more than instructing a solicitor as to his own views. The child enters the arena amongst other adult parties. He may give evidence and he may be cross-examined. He will hear other parties, including in this case his parents, give evidence and be cross-examined. He must be able to give instructions on many different matters as the case goes through its stages and to make decisions as need arises. Thus a child is exposed and not protected in these procedures. It has yet to be determined how far the court has power, if it has any power, in such circumstances to deny a child access to the hearing. The child also will be bound to abide by the rules which govern other parties, including rules as to confidentiality.'


Analysis of re: CS v SBH:

I respectfully disagree with Williams J with regard to application of re N above.  It over looks Lord Wilson's judgment in Re LC (Reunite: International Child Abduction Centre Intervening) [2014] UKSC 1, [2014] 1 FLR 1486

The grant of party status to a child will still leave the court with wide discretion to determine the extent of the role which the child should play in the proceedings, including: 

o Whether he or she should be present in court during all or part of the hearing;

o Adduce a witness statement by the child/ young person, or a report by the child or young person's guardian; 

o Permit cross-examination of the other parties on the child/young person's behalf;

o Permit submissions to be made on the child/ young person's behalf 

Furthermore, as set out in more detail below the progressive view from more recent cases places greater emphasis on the child's participation in proceedings and the autonomy and consequential rights of children.

There is a danger in laying too great an emphasis on older cases for this reason.

Further re: CS does not mention 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."

Article 12 rights will be further considered in the second article in this series.


Issues the Court should take into account if asked to determine a child's understanding:

William's J concluded in re: CS in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including;

i) The level of intelligence of the child

ii) The emotional maturity of the child.

iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state.

iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role.

v) Their understanding of the issues in the case and their desired outcome, any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. Some degree of influence is a natural component of decision making but the closer to the 'parroting' end of the spectrum one gets the lower the level of understanding there is likely to be. An unwise decision does not mean the child does not understand although it will no doubt depend on the extent to which the child's view diverges from an objectively reasonable or wise decision.

vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. Care should be taken not to impose too high a level of understanding in this regard; many adults with capacity would not and we should not expect it from children. An ability to understand that their solicitor put their case but also has duties of honesty to the court, an ability to understand that the judge makes a decision based on an overall evaluation of the best interests of the child which balances many competing factors; the ability to understand that they might attend court, could give and evidence, could read documents; the ability to recognise the stress of exposure to the court process and the arguments between others. The presence of all of these would be powerful signs of a high level of understanding. Conversely the absence of them or evidence of a distorted understanding would be contra-indicators.

vii) The court's assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child's appreciation of the risks of harm.


Conclusion:

In summary Re: CS contains an important analysis that builds on the other leading judgment in this areas of Lady Justice Black in Re: W (a Child) (Public Law proceedings: child's separate representation [2016] EWCA Civ 1051.  This will be further considered in the second article in this series.

William's J reminds us that the assessment should be swift and pragmatic without too deep a dive into the issues in the case and the competing analyses of the solicitors involved. In some cases, an expert assessment might be required in particular where the solicitors' assessments are relatively evenly balanced or the court is otherwise unable to reach a clear view. No party suggested an expert was required in this case.

On a final note, whilst it is clear there is a change in attitude towards the participation of children in proceedings and a more away from a paternalistic approach with greater autonomy and rights of the child, one might argue that we still have some way to go to ensure that a child's Article 12 rights are complied with and that there is a still a tension between domestic law (which wins out) and the Convention Rights of the child.