Lego instructions and the views of a child: Part 1

CS v SBH: a solicitor’s role

 

In CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019), Williams J was dealing with an appeal by a child in the Family Division in which he held that the child’s appeal ‘is a continuation of the first instance proceedings’ (at [41]). It was not therefore open to her to instruct solicitors afresh where she wanted to proceed without the solicitors she had in the court below. This post deals with the ‘views’ of a child in a case like this; and Part 2 with a point on appointment of a solicitor which puzzled Williams J. (The  facts of the case are referred to by Williams J at [4]-[6], more fully set out in Part 2.)

 

Finally, and dependant on the permission of HHJ Meston QC (who dealt with the mother’s original unsuccessful child arrangements order application) Part 3 may deal with unanswered questions implied by the judgment, but not dealt with. Namely what documents were CS’s chosen appeal lawyers permitted to see and to see CS themselves? Though the judge read the documents, and made his decision on the basis – he said – that CS’s appeal lawyers had not been able properly to assess her age and understanding, he did not deal with these prior applications, either expressly or by implication. Judge Meston QC has been asked to give permission for these facts and his orders, in the proceedings below, on which they are based to be reported.

 

Blog comments to date….

 

Paul Magrath, for Transparency Project, commented on the case in ‘CS v SBH: a child’s competence to appoint her own lawyer’. He had attended court as a ‘legal blogger’. He was tentative about mentioning my involvement in the case. ‘Suesspiciousminds’ described the case as

‘the most complicated argument that I have read in a family law judgment that doesn’t contain the words “Brussels II” at some point’. He went on (I record gratefully): ‘[the case] involves David Burrows in some capacity in the litigation, and David is an assiduous and careful legal commenter and one of the most precise human beings I’ve ever known, so that adds to my pressure in trying to simplify and clarify the decision without getting it wrong.’

 

How much I could say about the case – if I decided to do so – lead me, before commenting, to examine Administration of Justice Act 1960 s 12(1) as carefully as I could; and – inconclusively – to come up with ‘Contempt of court: “publication” and children proceedings’ . All I can say is that for the first time in over 40 years of practice I was confronted with a real issue under s 12(1). My examination of it, as FE Smith did not say, made me better informed, but not a great deal the wiser in terms of advising myself.

 

I want here to deal with two points arising from CS (and in so doing I sincerely hope I am within s 12(1) limits):

 

• The extent if at all that Williams J in CS took account of United Nations Convention on the Rights of the Child 1989 Art 24 and the ‘views’ of the child (Part 1); and
• The administrative law point – described by the judge as a ‘pre-preliminary’ issue (Part 2).

 

Introduction and an outline of the case

 

As Suesspiciousminds says, the working out of Williams J’s judgement is ‘complicated’; but its ratio (ie what the case decided) is simple. It is that appeal proceedings are not separate from the proceedings and decision appealed against. Therefore CS was not entitled to instruct a solicitor afresh on the appeal (unless, perhaps, she was assessed afresh on the appeal: the ‘unanswered’ question):

 

[82] The effect of my decision is that the child cannot pursue this appeal without a children’s Guardian. The Guardian remains appointed for the child. Given my conclusions, Ms Coyle is not obliged to conduct the proceedings in accordance with instructions received from the child (FPR 16.29(2)) but rather in accordance with instructions received from the Guardian (FPR 16.291)).

 

The rest of most of the 31 page (81 paragraphs) judgment is obiter. It makes interesting reading – complex even. It revives a 1993 case of mine – important I believe for children and the lawyers they want to represent them, namely Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA. (I did not, as Williams J kindly says (at [37]) ‘appear’ in the case; though I represented Claire, and appeared before Thorpe LJ below. In the Court of Appeal she was represented by Judith Parker QC and Roderic Wood QC. CS deserves to be revisited for Williams J’s obiter remarks on Re CT; but that is for another day.)

 

Representation of CS; a skeleton argument

 

As introduction to CS, it is enough to say that I was the lawyer – as [1] of CS makes clear – who represented the child on an appeal to the High Court. As agent for Barbara Hopkin, solicitor (who represented CS at the hearing before Williams J), I filed her notice of appeal. Her court-appointed lawyer, Laura Coyle, had not pursued an appeal from the child arrangements order below (nor, as far as I know, advised on the issue of appeal).

 

My skeleton argument was anonymised so it could be handed to any press at the hearing. It starts:

 

Background – the issue before the court

 

1  The issue which arises for determination is set out in the order of Williams J of 13 February 2019 as follows:

 

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 [CS] having regard to whether [CS] 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’)

[2]  Prior to this is the question of whether the appointment of Laura Coyle (LC) by a Cafcass officer as solicitor for [CS] is lawful:

• In the proceedings under appeal; and
• On [CS]’s proposed appeal?….

[3] …

 

[4] It will be argued here that: LC’s appointment was not lawful; and that the decision and order below should therefore be set aside. This appeal then becomes redundant.

 

[CS]’s ‘views’

 

[5] Central to any question relating to [CS] is United Nations Convention on the Rights of the Child 1989 Art 12, by which this court is bound and 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.

 

This extract from my skeleton arguments sets out the two points I will deal with in this and the followings posts: the child’s views (Part 1); and the lawfulness of Coyle’s appointment (Part2). I assumed the first – application of Art 12 – was a given in family proceedings nowadays. I had thought I explained sufficiently the lawfulness point – to be dealt with in Part 2 – in my skeleton argument. However, not satisfied only with finding it like Lego bricks without a set of instructions, the judge just refused to deal with it (per [20] below) at all.

 

United Nations Convention on the Rights of the Child 1989 Art 12

 

So far as I know – and I have read many of the more recent papers in CS’s case – in none of the judgements in the period of the mother’s child arrangements order application (case management or final decisions: May 2018 to February 2019) has Art 12(1) been raised. In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (where, as Williams QC (the CS judge) represented the unsuccessful father), drawing on Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2007] 1 FLR 961, the Court of Appeal (per Ryder LJ) said:

 

[41] A principle that is of ‘universal application’ consistent with our international obligations under article 12 of the United Nations Convention on the Rights of the Child is on its face a fundamental principle. I regard this court as bound by their Lordship’s decision In re D…. In every case, the court is required to ensure that the child is given the opportunity to be heard. That means asking the questions, “whether and if so how is the child to be heard”.

 

The child’s ‘views’ in CS were treated as being frozen at between four (final hearing before HHJ Meston QC: November 2018) and nine (first case management hearing before Meston QC: May 2018) months before Williams J’s decision. No review or attempt to elicit CS’s views was attempted by Williams J (D was aged seven: CS was nearly 13). All that I can say – I was not in court – is that a search of the judge’s judgment for ‘UN Convention’ or ‘United Nations’ etc gives one reference to ‘UN Convention Art 3’, and one – in a judgment of Thorpe J in Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011 (cited in my skeleton argument, of course) – to Art 12. Neither reference, plainly, were part of the judge’s reasoning for his decision; and the Thorpe LJ reference part of the obiter discussion. Neither, in particular, refer to the ‘views’ of CS, the near-13 year old child in the case.

 

The decision was made against a back-ground of Williams J’s view that:

 

[78] … There is however an immediate and obvious difference between them…. Ms Hopkin’s evaluation is based primarily on her meeting with the child supported by what she can glean from communications that she has had with the child or which she has been sent by the child and some other modest exposure to information. Although her evaluation has not taken place in a vacuum it is very much in a low pressure vessel in terms of the material that has been available to her to assist in the evaluation. Ms Coyle’s evaluation has been taken with exposure to the full atmosphere of information which bears upon the issue. As Ms Hopkin accepted in submissions, an initial evaluation of a child may very well have to be reassessed the light of further information that becomes available. This is far from a simple case given the history of it. Thus initial impressions almost certainly would have to be reassessed.

 

This finding overlooked the point on which it should have been contingent: namely the unanswered question of the extent of documents seen by the judge (but not by Barbara Hopkin); and the fact that the court would not permit her to be seen personally by Hopkin.

 

Lego, a learned judge and a FE Smith moment

 

There is no direct reference to ‘Art 12’; but search the judgment for the term ‘Lego’ and there it is. Williams J’s FE Smith moment comes in para [20] (Thus, at the lunch adjournment in a case, having heard FE Smith’s submissions, a judge regretted – he said – that ‘he was none the wiser’, as a result. ‘No, but much better informed, my Lord’ was the reply). Lego and Williams J’s FE Smith moment will be dealt with in Part 2….