Lego instructions and the views of a child: Part 2

20160419_173301Lego, the law and child representation: a pre-preliminary point

 

In Part 1 of this short series I referred to a skeleton argument I had filed 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 a child’s appeal ‘is a continuation of the first instance proceedings’ (at [41]). I referred to a short extract from my skeleton argument which was deployed by another lawyer at the hearing of the case. I said, in Part 1, that that part of my skeleton argument dealt with two points: (1) the child’s views (United Nations Convention on the Rights of the Child 1989 Art 12); and (2) the lawfulness of the child’s solicitor’s appointment.

 

This post deals with the second point which the judge described as being like Lego bricks without a set of instructions. He refused to consider my arguments on the original appointment of the solicitor (see [20] below). That said, he specifically did not consider the argument and reject it. It remains open for another day.

 

In summary this aspect of my skeleton argument was summarised by the judge:

 

[20] … In the skeleton argument Mr Burrows argued that the original appointment of Ms Coyle was unlawful and should be declared to be unlawful pursuant to the Senior Courts Act 1981 section 30 (2) with the knock-on effect being that the order of HHJ Meston QC would fall to be set aside without further consideration. Given that there was no appeal in respect of that appointment and the July order and no reference had been made to the possibility of such an appeal in the directions hearing on 13 February 2019, I refused to permit Ms Hopkin to pursue that line of argument. If the appointment had been wrongly made the appointment pursuant to the court order would remain valid unless and until such time as the order was set aside on appeal (italics added).

 

Williams J concluded this paragraph by lamenting his lack of ‘instructions’ from the skeleton argument (his FE Smith moment: see Part 1). He said:

 

… Although the skeleton contained some relevant and useful material, overall I felt as if I had been presented with a box of Lego pieces but no instructions to construct the model. It was only by a process of trial and error that one was able to ascertain which pieces were relevant to the model and which were for something else entirely.

 

Williams J may be unfair to himself. The earlier part of the paragraph precisely summarises what I was trying to say – and much more economically; but I was saying on this hearing (and having regard to the best interests of CS) that it was open to him to review the appropriateness of the appointment. That said, I had to accept that the original appointment of Coyle should more aptly have been appealled against.

 

Appointment by children’s guardian

 

The point is academic, now; but on an academic basis only – not because it seeks to reargue a case already dealt with – I ask whether an appointment made in the circumstances (used as illustrative only) of this case is lawful? It occurred, as the judge explains, as follows:

 

[4] … Shortly after the mother issued her application for a variation of the ‘live with’ order in April 2018, a dispute arose over which solicitor should be appointed by the [children’s] guardian. On 11 May 2018, the child was taken by her maternal grandparents to see Barbara Hopkin a well-known child law solicitor. The consultation was apparently funded by the maternal grandparents. Ms Hopkin assessed her as being competent to instruct a solicitor and wrote to the court asking that she be appointed as the child’s solicitor albeit with a Guardian. The Guardian however appointed Ms Laura Coyle, another well-known child law solicitor, who the Guardian had instructed throughout the earlier proceedings. At a hearing on 3 July 2018 HHJ Meston QC refused Ms Hopkin’s application for Ms Coyle’s appointment to be revoked and for her to be instructed and confirmed the appointment of Ms Coyle….

 

The judge went on to explain that no appeal was made against that ‘decision’ then or subsequently:

 

[4] … Ms Hopkin candidly accepts that she indicated to the child and to the maternal grandfather she thought that appealing against the decision was unnecessary [para 9 of her statement]. Thus any application for an extension of time to appeal that order (had such an appeal been lodged) would probably have been doomed to fail having regard to the criteria applicable to relief from sanctions under FPR 4.6….

[6] … Since 3 July 2018 the child has been a party to the proceedings with a Guardian appointed for her pursuant to FPR 16.4 who has appointed a solicitor Ms Coyle. The child’s wishes were to live with her mother. Ms Coyle met the child separately from the Guardian on 16 October 2018 specifically to assess her competency [and] concluded that the child was not competent to instruct her.

 

There was no question of appeal by the time I became involved (after the final child arrangements order hearing in early November 2018). However it seemed to me when I prepared my skeleton argument that if the appointment of Laura Coyle was unlawful, then it should be set aside.

 

Responsibilities of a children’s guardian

 

This is an absurdly complex (‘of complexity’ was the word chosen by Black LJ in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027) area of law: that is, the law and practice of who reports upon and who represents a child in Children Act 1989 Part 2 (‘private law’) proceedings.

 

A reporting officer reports under CA 1989 s 7. If a child is ‘joined’ in proceedings – which is dictated by FPR 2010 PD16A para 7.1 which requires an issue of ‘significant difficulty” – then a children’s guardian (not the same in law as a reporting officer, though in practice what is the difference?) is appointed. Both reporting officers and children’s guardian are ‘officers of the service’ (ie Cafcass officers); or generally so. (Even this is foggy in law: a children’s guardian could be a private individual (PD16A par 7.7)). The children’s guardian, if a Cafcass officer is responsible for reporting to the court.

 

The role of Cafcass as a whole is defined by Criminal Justice and Court Services Act 2000 s 12 in relation to the ‘welfare of children’:

 

12 Principal functions of the Service

(1)In respect of family proceedings in which the welfare of children is or may be in question, it is a function of the Service to—

(a)safeguard and promote the welfare of the children,

(b)give advice to any court about any application made to it in such proceedings,

(c)make provision for the children to be represented in such proceedings,

(d)provide information, advice and other support for the children and their families.

 

The nearest this comes to the children’s guardian appointing a solicitor is s 12(1)(c) – ie to ‘make provision for…’ representation. I argued in my skeleton argument in CS means, in administrative law terms – and all this turns on administrative law issues – to make ‘financial provision’ for.

 

It does not mean, as did the children’s guardian here, to appoint a lawyer for the child. That is not her job, in law. She has no power, where the child has already appointed a solicitor who considered her to be of ‘sufficient understanding’ – as CS had done here – to go behind that unless, on application, the court so ordered (Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, sub nom Re T (A Minor) (Child: Representation) [1994] Fam 49, [1993] 3 WLR 602, CA).

 

Who tests the child’s understanding

 

The judge disagreed with that last point (para [39]): ‘… it is ultimately for me to decide whether the child has understanding or sufficient understanding to conduct the proceedings without a Guardian.’ Williams J did not consider the Re CT point (as I see it): that he only had power to determine the issue of who was to represent the child on ‘challenge’ by someone in the proceedings, as Waite LJ saw it (at [1993] 3 WLR 602, 614):

 

I would hope and expect that instances where a challenge is directed to a solicitor’s view of his minor client’s ability to instruct him will be rare, and that cases where the court felt bound to question such ability of its own motion would be rarer still. If and when such instances do arise, I would expect them to be resolved by a swift, pragmatic inquiry conducted in a manner which involved the minimum delay and the least possible distress to the child concerned. It would be very unsatisfactory if such issues themselves became the subject of detailed medical or other professional investigation….

 

The appointment of a solicitor by a children’s guardian and what Criminal Justice and Courts Act 2015 s 12(1)(c) means is still at large, in terms of what s 12(1)(c) means. The question is open.

 

Taking account of the child’s ‘views’ should not have been open to contrary argument. That CS’s views should have been considered on an appeal such as this, should surely have been beyond question? If the child’s views had been considered, this would have given rise to a third issue not properly considered in CS (though plainly implied by it): who tells the child how to sack her solicitor. That, too, must await another day….

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