‘Sufficient understanding and intelligence’
In Re Z (A Child – Care Proceedings – Separate Representation) [2018] EWFC B57 (judgment: 29 June 2018), HHJ Bellamy sat in the Family Court and dealt with the wish of a 14 year old boy (Z) to instruct his own solicitor and to part company from his children’s guardian. The published judgment is ‘an abbreviated copy of my judgment’ which is ‘written for a very intelligent 14 year old’. It is the judgment of a circuit judge, so it may not be of direct citable authority. That is a subject for another day. For the present I shall treat a judgment from HHJ Bellamy as from a source on which any children lawyer is entitled to give respect; and to rely on as a precedent in a suitable case.
The judgement turns on FPR 2010 r 16.29(2) (text below) which raises the question of a child having the ability to instruct a solicitor direct. That principle is rooted in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224, where – of a child’s understanding and how it should be respected – Lord Scarman said (at [1986] 1 AC 112, 186 and [1986] 1 FLR 224, 251): ‘The underlying principle of the law … 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…’. ‘Child’ here means a child under 18 of ‘sufficient understanding’ to instruct the child’s own solicitor (ie a ‘mature child’ or Gillick-competent).
I have not seen the other version of HHJ Bellamy’s judgment. In the version available, he deliberately leaves out most references to the law on which he bases his decision. It is not even referred to in foot-notes, which is a pity (the whole point of a foot note is to provide an occasional aside, so as not to interrupt the flow of the main text). I think I spotted a few of the references, but by no means all.
Z: seeing the judge and his understanding
Z was the subject of care proceedings after a rocky period in his life which included allegations of sexual abuse by his mother (some manufactured, but probably not all: the final hearing of the application was to be in August) and his grandmother whom he later went to live with. At the time of the judgment he was living again with his grand-parents. He knew exactly what he wanted to achieve – a return home, or to live with his grand-parents; but not with foster parents or in a therapeutic placement (as the local authority were likely to want). He had been referred to a psychiatrist who had filed an extensive report. He saw the judge who described the meeting as follows:
‘[27] Through his guardian and solicitor, Z asked to see me. With the agreement of all parties, I saw Z on 8th June in the presence of his guardian and solicitor. The meeting, though informal in style, took place in a court room and was recorded. The guardian also took a full note of our conversation. That note has been circulated to all parties. In our meeting, Z repeated many of the points made to the experts and to his solicitor and guardian.
[28] In conversation, Z comes across as extremely articulate and highly intelligent. He was neither emotional nor unduly emotive….’
Under a heading, ‘The law’ the judge sets out the majority of the duties of a children’s guardian (at [30]) and of Z’s solicitor (at [31]). At [32] the judge sets out ‘guidance given by senior judges’ on how to decide whether someone like Z ‘has sufficient understanding to instruct his solicitor directly’.
He summarises the decision he is asked to take:
‘[33] If the solicitor decides that the child does not have sufficient understanding to instruct his solicitor direct, the court can be asked to review that decision. The judge will come to his own independent decision after taking into account the points just made.’
The rule which deals with the judge’s decision and which I shall take to represent the law, is at FPR 2010 r 16.29(2) and (3):
(2) If a solicitor appointed as mentioned in paragraph (1) [ie appointed by the court in CA 1989 Pt 4 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.
(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.
There is no reference in FPR 2010 r 16.29 to a referral back to the court as happened in Re Z. It is not possible to tell whether HHJ Bellamy was referred to Re CT below. Probably not: the case seems to have fallen out of use, but is still good law, as far as I know. However, the way he dealt with Z’s application seems to fit in with what Waite LJ said. A difference is that Re Z was CA 1989 Part 4 proceedings; whereas CT was Part 2, for a Section 8 order (ie for CT to go back to live with her natural family from her adoptive family). I think that is a distinction without a difference.
A child’s age and understanding and court proceedings
There are five separate areas where the issue of a child’s understanding in relation to children proceedings arises. The rules are opaque, even for a lawyer. The law and rules can only be found in different primary and delegated legislation. Lawyers get it wrong: see eg Black LJ as she was then in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 where – I think – she misunderstood the child representation law. Understandably she described it as ‘of complexity’ (see fuller explanation in Children’s Views and Evidence David Burrows (Bloomsbury, 2017) at 6.88 and 6.116). If a children lawyer of Lady Black’s calibre can get the law wrong (as I think she did) and find it ‘of complexity’, what chances have the rest of us; and especially how can children expect to understand what is going on?
The five separate categories of the procedural jungle which is this part of children law are:
- Where a child wants to take her own proceedings (as eg did CT in 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: Sir Thomas Bingham MR Staughton and Waite LJ) considered below. The starting point is CA 1989 s 10(8): application where a child must have permission from the court if the court is ‘satisfied that s/he has sufficient understanding’; though FPR 2010 r 16.6(3) says, as explained in CT (above), that the law mostly leaves the decision to the child’s solicitor).
- A child wants to have a say – be heard by the court – in proceedings to which she is subject, eg that her of his parents are taking proceedings about where they are to live (see eg Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011; and see FPR 2010 r 16.4).
- A mature child is a party to CA 1989 Pt 4 (eg care) proceedings (as they will be) the child almost always has a solicitor (CA 1989 s 41(3)). If the child wants to part company with the child’s children’s guardian because, say, the child has different views from the guardian as to the outcome of the proceedings (as with Z) FPR 2010 r 16.29(2)(a) says the solicitor ‘must conduct the proceedings’ as instructed by the child. It is the solicitor who ‘considers’ and ‘has regard’ to the child’s understanding (see Re CT again).
- A child subject to a care order (like W in Re W (above)) where she or he wants to apply to discharge the order or for some other order in the care proceedings: at that stage the child has a solicitor so should not need a children’s guardian (perhaps; and see CA 1989 s 41(3)). For the recovery order proceedings in Re W, they are not specified proceedings anyway so a guardian should not have been appointed anyway.
- Assessment of a child’s views in child abduction proceedings; and whether this should be done after the child (perhaps even as young as seven: Re D (above)) with the child as a party and with the child’s own solicitor.
Sufficient understanding to give instructions to a solicitor
Assessment of a child’s understanding, and therefore of their ability to take part in proceedings, is not easy. Solicitors are not trained for the job. The legal aid scheme is unlikely to permit wall-to-wall opinion evidence for each mature child (though a child with particular vulnerability will be appropriate for assessment: see eg Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 (28 June 2018), Cobb J). But what does the law and the rules say about assessment of understanding by the lawyers?
Whatever solicitors may think, or courts wish to order, the first assessment in categories (1)-(4) is the job of the solicitor; though as Waite LJ explained in Re CT, is the final arbiter is still the court. Waite LJ explained that the normal way for a child to proceed in civil proceedings would be by a guardian or next friend (now CPR 1998 r 21.2); but that FPR 1991 r 9.2A (as it then was; now r 16.6) had introduced an exception to that principle in certain specific instances. He defined these as follows for CA 1989 Part 2 applications (ie categories (1) and (2)):
‘(1)Where the court has given leave at the outset for a minor to begin or defend proceedings without a next friend or guardian ad litem. Such leave is only to be granted if the court considers that ‘the minor concerned has sufficient understanding to participate as a party in the proceedings . . . without a next friend or guardian ad litem’ (r 9.2A(1)(a), (6) [now r 16.6(3)(a) and (6)]).
(2)Where a minor has a next friend or guardian ad litem in proceedings that are already on foot and applies successfully for leave to prosecute or defend the remaining stages of the proceedings without a next friend or guardian ad litem. Leave for that purpose is only to be granted if the court reaches the same conclusion as in case (1) (r 9.2A(4),(6) [r 16.6(5)]).
(3)Where a solicitor has accepted instructions from the minor to act in the proceedings, and where that solicitor ‘considers that the minor is able, having regard to his understanding, to give instructions in relation to the proceedings’ (r 9.2A(1)(b)(i),(ii) [r 16.6(3)(b)]).’
So said Waite LJ: who was to assess the child’s ‘understanding’: the court or the solicitor? He continued (at 288) of judging CT’s understanding:
‘I have stressed that there has not so far been any suggestion that Mr Burrows [yes, me] is or may be incorrect in the view that he has formed, for the purpose of r 9.2A(1)(b)(i), that CT 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 court’s ‘ultimate right to decide’
He concluded that the court should have the ‘ultimate right to decide’; but, said Sir Thomas Bingham MR, ‘the solicitor’s judgment is to be respected and given great weight’ (at 291). In practice, therefore, the court is only likely to become involved as final arbiter if the solicitor has doubts or if another party, on good grounds, questions the solicitor’s discharge of her or his duties in representation of a child.
This is the criterion – solicitor’s view of the child’s understanding, first; and arbitrement by the court is the solicitor is unsure of his or her view, or someone challenges – which applies in Part 2 proceedings (Re CT). The similarity between r 16.3(3)(b) (Part 2 proceedings) and r 16.29(2)(a) (Part 4 proceedings) on the question of understanding is close. Re CT provides the common law approach to how the understanding should be tested by the courts, and in what circumstances, in Part 2 and Part 4 proceedings (categories (1)-(4) in the list above).
Better still, the whole area of child representation procedure and its rules should respect children. They should have a procedural law which from a highly experienced children judge down to the moderately intelligent child (with us lawyers in between) – yes, we should have law which all of us can understand.
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