Children and private law: to claim the rights – Part 2

20160924_142217Procedure for a child’s application


The first post in this series outlines the rights of children and their views in proceedings concerning them. This part will look at court procedures procedure for how rights – a child’s ‘views’ – are dealt with as a court process; or how the rules – so far as they can be understood – deal with those views. Part 3 will look at how a child’s views are dealt with in practice, and what court procedure rules actually permits.


The law sources of information as to a child’s application are varied. They are statutory under CA 1989, in the rules (FPR 2010 and perhaps CPR 1998), in practice directions and in scattered case law decisions. Each of these sources has to be threaded into a coherent whole by the child – or the child’s adviser – who wishes to apply to the court. This note, as already explained, deals only with private proceedings (see part 1): that is, proceedings under Children Act 1989 (CA 1989) were children of ‘understanding’ wish to make an application, or to join in proceedings between their parents (eg to say to the court where they would like to live).


First, which court? Some family proceedings are issued in the Family Court, some in Family Division of the High Court. And don’t let anyone tell you we now have a unified family court, as this example shows.


Shortly after CA 1989 came into operation and children started making their own applications to the family courts the then President of the Family Division issued a practice direction which directed that children applications be in the High Court. Practice Direction of 22 February 1993 (Applications by children: leave), [1993] 1 WLR 313, [1993] 1 FLR 668 says:


Under section 10 of the Children Act 1989, the prior leave of the court is required in respect of applications by the child concerned for section 8 orders…. Such applications raise issues which are more appropriate for determination in the High Court and should be transferred there for hearing.


Given the final paragraph of the practice direction, it is likely that if a child wishes to apply to be joined in family proceedings that also should result in a case already before the court being transferred to the High Court.


A child’s views in section 8 proceedings


Next it is necessary to look at the types of case where a child may want to have their views heard in private proceedings.


(1) A child’s free-standing application in CA 1989 Pt 2 proceedings


In Re SC (A Minor) (Leave to Seek Residence Order) [1994] 1 FLR 96 Booth J was dealing with a 14 year old child who wanted to apply to live with the family of a long-standing friend. Booth J was quite clear that SC was entitled to make the application (rather than only the person with whom the child proposed to live) (at 100):


… The Act enables a child to apply for leave to apply for a s 8 order and a residence order is not excluded. In my judgment the court should not fetter the statutory ability of the child to seek any s 8 order, including a residence order, if it is appropriate for such an application to be made. Although the court will undoubtedly consider why it is that the person in whose favour a proposed residence order would be made is not applying, it would in my opinion be wrong to import into the Act any requirement that only he or she should make the application.


Application is made under CA 1989 s 10(2)(b) and (8)


(2)     The court may also make a section 8 order with respect to any child on the application of a person who— … (b) has obtained the leave of the court to make the application.

(8)     Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.


The child may pursue the application with a guardian (FPR 2010 r 16.4). This is the same as would be the case if she was taking ordinary civil proceedings by a litigation friend (CPR 1998 r 21.2), at least in theory. Because this is children proceedings it is more complicated than that.


Unlike in civil proceedings, a child can take proceedings under CA 1989 (see FPR 2010 r 16.6(1)) and do so without a guardian if the child has permission from the court or a solicitor is willing to accept instructions from her (FPR 2010 r 16.6(3)):


(3) [A child may take CA 1989 proceedings without a children’s guardian where] 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.


This provision replaces one which was inserted into Family Proceedings Rules 1991 (introduced alongside CA 1989) to deal with s 10(8) applications (formerly FPR 1991 r 9.2A(1)), a provision which was explained by the Court of Appeal in Re CT (mostly in the context of what may be done if a person – a parent, perhaps, or the court – considers that the child does not have sufficient understanding to consult the solicitor (see below)). Till that question is raised – if at all – the child can conduct the proceedings represented by a solicitor as if she were a private client; just as the hypothetical child in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 could consult a GP about contraceptive advice as if a private patient.


(2) A child wants to apply to join in existing proceedings which directly concern the child


There is no doubt that a child can be joined as a party to proceedings which concern him or her (r 12.3(3)); but the procedure whereby that is achieved and by what criteria are not clear. By contrast CPR 1998 r 19.2 restates the common law:


(2) The court may order a person to be added as a new party if –

(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.


Application is made in the existing proceedings (CPR 1998 r 19.5). In Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011 the Court of Appeal dealt with three (of a family of six) children, whose views were not being independently represented by their children’s guardian. They considered they could no longer represented by him and consulted a solicitor. The judge refused to grant the application for separate representation (now under FPR 2010 r 16.6(5)). Thorpe LJ explained how the courts must adapt and recognise the development of children’s rights:


[26]   In my judgment, the rule is sufficiently widely framed to meet our obligations to comply with both Art 12 of the UN Convention and Art 8 of the European Convention, providing that judges correctly focus on the sufficiency of the child’s understanding and, in measuring that sufficiency, reflect the extent to which, in the twenty­-first century, there is a keener appreciation of the autonomy of the child and the child’s consequential right to participate in decision-­making processes that fundamentally affect his family life.


In agreement with Thorpe LJ, Wall LJ commented that the guardian ‘would be advancing to the judge’ for the boys a case which was ‘directly opposed to what the boys were actually saying’. By refusing representation to the boys – including a 17 year old – the first instance judge overlooked the need for them ‘to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented and their perspective fully advanced to the judge’.


(3) A child whose instructions conflict with the child’s guardian; and the child wants his or her part in the case dealt with on the child’s instructions


In CA 1989 Pt 4 (care) proceedings it is relatively clear that a child can part company with her solicitor. If that happens FPR 2010 r 16.29 (which deals with solicitors appointed in care proceedings under CA 1989 s 41(3)) provides that:


(2) If a solicitor appointed [in care proceedings] 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 instructions on the child’s own behalf,

the solicitor must conduct the proceedings in accordance with instructions received from the child.


Matters in para (3) include the views of the children’s guardian. If he or she is against (save on grounds of understanding) the child would normally prevail.


There is no equivalent provision in Pt 16 for private proceedings; but this situation is so close to that in r 16.29(3) and Mabon (above) that, I suggest, conduct of the case for the child in s 8 proceedings is likely to be ‘in accordance with instructions received from the child’ as in r 16.29(3). Some lawyers may disagree. There is no clear guidance that I can find for a child in the law or the procedural rules.


Clara and her solicitor


Imagine Clara from Part 1. Her case is under (2) above. Her parent’s case is already under way (like the Mabon boys). If she finds out that there is a way she can join in the proceedings and that she can find a solicitor to help her (with legal aid: assessed on her means (if any)), then the solicitor will have to assess her ‘understanding to give instructions’ (in the same way as under r 16.6(3)). Application can be made under FPR 2010 r 18.7 – an application in the course of proceedings – for an order that Isobel be joined. It will then be for the court to decide to what extent it takes into account her views (see eg Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347).


If she is introduced to a solicitor (eg by one or other of her parents, or by another relative) so be it. In S v S (Relocation) [2017] EWHC 2345 (Fam), [2018] 1 FLR 825 children of 15 and 13 were taken to see a solicitor (the duties of such a solicitor is considered at [31]-[32] in that case). Peter Jackson J (now a Court of Appeal judge; and ever a wise and perceptive children lawyer) reflected on the extent to which the court is entitled to question the wisdom (or not) of a course proposed by a child of understanding:


[23] … These boys are old enough to instruct lawyers to ensure that their wishes and feelings are fully represented. At their age, those wishes and feelings are a very important element in their welfare. That is so even if the wishes and feelings are unwise. There is nothing in the law that says that the wishes and feelings of older children should be wise or reasonable. They may be foolish or immature but respecting children’s points of view must, in the case of older children, accept to some extent the risk of them making mistakes…. This is not… the court washing its hands of the boys but, rather, taking a practical view of the real life of this family.


Is it appropriate for a solicitor to be instructed at all?


Finally, what of the position where a party or the court considers that the child may not be of sufficient understanding to consult a solicitor. That was considered by the Court of Appeal as long ago as May 1993 (when CA 1989 had been in force for less than 18 months). In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49 (where I represented CT as CA 1989 was bedding down on the statute book).


CT, aged 13, wanted to move from her adoptive parents to her natural family in South Wales. She needed my agreement to act (Family Proceedings Rules 1991 r 9.2A, the predecessor to FPR 2010 r 16.6(3)). With legal aid in place we applied for ‘leave’ (as then) under CA 1989 s 10(8). CT’s adoptive parents made her a ward of court which Thorpe J confirmed. She would be represented by the Official Solicitor. As she saw it, with 10p in a coin box in her school she could ring me. 10p gave her no time on the phone to the OS representative, even if he or she could be found. As a legal representative he was nothing to her. And anyway, as she said to Thorpe J after his decision (he refused to hear her beforehand): ‘I wants my own solicitor’.


Claire appealled against the wardship order of Thorpe J. In the Court of Appeal Waite LJ considered as one of the main issues whether assessment of understanding ‘is a matter for consideration by the court, or whether it is exclusively a matter for assessment by the solicitor who is deciding whether or not to accept instructions’ ([1993] 2 FLR 278 at 282). The court had allowed CT’s appeal. She should not have been made a ward.


But what of the judge’s anxieties which had led to wardship in the first place?


The result of ruling out wardship is that the judge will be left, at any future hearings of the case, with the same anxieties that led him to explore means of imposing a guardian ad litem in the first place. I have stressed that there has not so far been any suggestion that Mr Burrows is or may be incorrect in the view that he has formed, for the purpose of r 9.2A(1)(b)(i), that C is able, having regard to her understanding, to give instructions in relation to the proceedings. It seems to me, however, that it would be unhelpful to the judge – and for that matter to other judges who may find themselves confronted with a similar situation – simply to leave the matter there. A conclusion has to be reached on the question (to which I have already referred in passing) of who is to be the judge of the minor’s ability to give instructions?


The questions for the court on this aspect of the appeal were: was it for the solicitor alone to define the child’s understanding thus for the child to proceed alone; or can the court on its own initiative ‘or on the application of another party, to go behind the solicitor’s view and examine for itself the state of the child’s understanding and come to a conclusion which may differ from the view taken by the solicitor?’ Waite LJ preferred the second course. In cases of doubt about a solicitor’s assessment of a child’s understanding the court would have ‘the ultimate right to decide’ ([1993] 2 FLR 278 at 289). He hoped that the solicitor’s view of the child’s ability to instruct ‘would be rare’.


Clara’s way ahead


For Clara the first step will be to understand that she has rights and to get to see a solicitor and apply for legal aid. For the solicitor it will then be a matter of threading her or his way through the various forms of law, procedure and common law outlined in this article. And if anyone objects to Clara and her solicitor’s proposed course of legal action, they will need to dig out Re CT and follow it within the terms explained by Waite LJ.


And if Clara’s solicitor is to be shifted, that raises a whole fresh area of law. Questions of her ‘understanding to give instructions’ (FPR 2010 r 16.6(3)(b)(i); Gillick v West Norfolk and Wisbech AHA (above) and eg Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949 Munby J) arise. In law that involves a review of the case the court perceives are the issues in the case, and the child’s ability to understand; and must not be confused with welfare issues in the particular case (see eg Briggs LJ in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note (above); and see Children’s Views and Evidence by David Burrows, Bloomsbury Professional, 2017 at Chapter 2).


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