Law on child’s rights to representation and legal aid
I have just finished writing a book on ‘Children’s views and evidence’ Bloomsbury. The book is about the rights of children and the way they give evidence and express views in courts. But rights are of little meaning if you do not know about them; or you do not have someone who can help to understand and represent those rights. At one point I tried to reduce the law into a manageable form for those who represent children; and in so doing I realised what a fractured set of principles is the law of representation of children’s rights in family proceedings.
If a child wants to find it, or if a lawyer to understand if she or he can represent a child, the law is scattered around, for example:
- in statutory provision (mostly Children Act 1989, especially s 10(8) and s 41 for care proceedings);
- in rules (mostly Family Procedure Rules 2010 Pt 16, but r 12.3 crops up); and
- in legal aid legislation (Legal Aid Sentencing and Punishment of Offenders Act 2012 and various regulations under that Act).
The scheme under CA 1989 and FPR 2010 Pt 16 can be seen to perplex even a children lawyer of the calibre of Lady Black (Black LJ in the Court of Appeal as she was). She has described parts of the law for representation of children as ‘of complexity’ (in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note  EWCA Civ 1051,  1 WLR 1027).
I quote in full the relevant passage of Black LJ’s her judgment (considered more fully at para 6.88 in my book, due for publication in the next couple of months). Of a case where a 16 year old had been refused representation by a solicitor of her choice, Black LJ said:
 There was some divergence of view as to which precise part of Rule 16 FPR 2010 should be the focus of the court’s attention. This was explored during the hearing but I do not propose to go into the details because there was, in fact, agreement as to the “test” that determined whether or not FW was entitled to be separately represented. I should make clear that when I speak of FW being separately represented, this is a loose term not entirely reflecting the complexity of the scheme under section 41 of the Children Act 1989 and Rule 16 FPR 2010 [ie FPR 2010 Pt 16]. What I seek to convey by it is a situation in which FW separates from the children’s guardian appointed to represent her interests, and gives her own instructions to a solicitor, as occurred in the original care proceedings….
It is possible, even after that explanation, that the Court of Appeal did not find the correct way through the ‘complexity’ (as explained in the book). For example, there was probably no need in the early stages of the case for a children’s guardian to be appointed (recovery order proceedings under CA 1989 are not ‘specified proceedings’: s 41(6); and the child was not at that stage a party to the case (see FPR 2010 r 12.3). Had the court (probably the Family Court) which originally dealt with the case got that right, the appeal is unlikely to have been necessary; and W would have had the representation of her choice from the start.
Four schemes for representation of children
There are at least four separate schemes for child representation in family proceedings:
- in care proceedings (CA 1989 s 41);
- in private proceedings where the child applies for an order (CA 1989 s 10(8));
- child abduction (Hague Convention) proceedings; and
- where a child applies to join in proceedings which concern him or her (CA 1989 Pt 2 or Hague Convention).
In each of these the law and rules as to a child’s representation are different. They can be found in different statutes and proceedings rules.
In each an assessment of the ‘understanding’ of an older child will be necessary; though the law is not always clear on exactly when and by whom this assessment is to be done (see Chapter 6 Part 4).
Legal aid for child representation
The legal aid scheme which applies to all this is beset by its own semantic contortions (as Chapter 6 part 6 of the book shows). Definitions do not parallel those in the children proceedings scheme. For example, the reader must distinguish between ‘specified proceedings’ (CA 1989 s 41(6); and see 6.12) which tell the child whether she or he should have appointed a children’s guardian (CA 1989 s 41(1); and the different terminology under the legal aid scheme.
To establish whether or not legal aid is available the child must work out whether her or his case is:
- A ‘special Children Act 1989 case’ (6.108); or is it
- A ‘a public law case’ (eg because it is not a ‘special Children Act 1989 case’) (6.112); or, yet again, is it
- Any other form of case where ordinary civil legal services representation may be available (6.114)?
All this need to be kept clear; since in the Re W case it seems the courts (including the Court of Appeal) may have got it wrong.
I have said here that the child must work out for example whether she is entitled to legal aid. And of course, most children will have help, probably from a lawyer. But for the mature – that is, the Gillick-competent child – that is not guaranteed. That child may have to work through the procedural and legal aid rules to understand what his or her rights to representation are. In the Re W case the lawyers who were dealing with the child’s case (though against her wishes) got the law wrong.
That any children are confronted – whether represented or not – by a law which even a senior children judge finds ‘complex’ – and may wrongly construe – is a blot on our justice system. (W was busy studying for and sitting exams, so she probably had little time in any event to study the minutiae of CA 1989 s 41(6), FPR 2010 Pt 16 and aspects of the legal aid scheme.)
31 August 2017