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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C (Child: Ability to Instruct Solicitor) [2023] EWCA Civ 889 (26 July 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/889.html Cite as: [2023] WLR(D) 329, [2023] 1 WLR 4065, [2023] EWCA Civ 889, [2023] WLR 4065 |
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COURT
OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM THE FAMILY COURT
AT BARNET
Her Honour Judge McKinnell
ZW22C50147
![]() ![]() Strand, London, WC2A 2LL |
||
B e f o r e :
LADY JUSTICE ELISABETH LAING
and
LORD JUSTICE WILLIAM DAVIS
____________________
![]() ![]() ![]() ![]() ![]() |
____________________
Conwell
LLP)
for the Appellant Mother
Rebecca
Davies (instructed by the local authority) for the
Respondent
Local Authority
The Respondent
Father appeared in person
Shiva Ancliffe KC and Gill Honeyman (instructed by Covent
Garden Family Law) for the
Respondent
Children
by their
Children's
Guardian
Hearing date : 5 July 2023
____________________
Lord Justice Peter Jackson:
Introduction
The care
proceedings
"I do take aclear
view that the father is being very damaging to the
children's
emotional health. If the mother's description of the father as
controlling
during their marriage is
correct,
then the
children
would have been damaged by being exposed to that. More generally, though, his own need for his
children
to idolise him and disparage their mother, overwhelms A's and B's needs. A in particular presented to us, and other professionals share this experience, of someone who talks in very much an over-adult fashion, overtly or unconsciously parroting his father's beliefs and words."
A was then aged 12.
"Whereas I acknowledge and agree that there is bound to be some degree of influence over achild
by a parent, I also believe that in this situation, the degree of influence over A by his father is extreme and damaging. The papers that I have
read
describe the potential for the
child
to be 'parroting' a parent's beliefs/words, and to act as their mouthpiece. In my opinion, this situation is more insidious and far-
reaching
than that as A has absorbed a belief system of his father's; it is most damagingly
connected
with his mother, whom he describes above as having a 'great hatred' of.
…
I think that A understands well enough the 'facts' of the process of litigation including the function of the lawyer, judge and Guardian and his role with those. I do not believe that A has a good appreciation of the potentialconsequences
of his involvement in litigation. He essentially saw no risk of difficulty or emotional harm from hearing about, for example, his family members, in the
court
environment, or
reading
about them - he said he had asked for my
report,
for instance.
Whereas I appreciate that instructing his ownsolicitor
would not necessarily mean he would have unfettered access to
reports
and papers, his lack of such understanding is of
concern
in the key issue for this
report.
…
Inconclusion
then, I would say that the majority of the areas under
consideration
outlined above lead to a view that A is not
competent
to instruct his own
solicitor.
The main arguments 'for' his doing so are his overall intelligence and his strength of feelings about this. However, I would say that his strength of feeling is at least in part based on false beliefs or premises. So although there is something of a balanced answer, I would say that the overall answer is that A is very probably not
competent
to instruct his own
solicitor,
on around a 90:10 balance."
"10. Dr Bourne assessed both A's and B'scapacity
to instruct
solicitors
and
concluded
that neither of them has
capacity.
The
children's
wishes and feelings have been made
clear
to me in their
correspondence,
diary entries and by both the Guardian and Ms Gaff.
…
12. …The experts are in no doubt whatsoever that thechildren
are parroting the father's beliefs and words. Having
considered
all the evidence, I entirely agree with them. It is
clear
and obvious. The language and phrases used by the
children
![]()
clearly
![]()
comes
from the father. They have either overhead him saying those things or he has spoken to them, using those words and phrases or he has told them what to say and write. The language, phrases and words do not all
come
from 11 and 13 year old
children.
…
14. … The father… was, andremains,
unable to separate his own needs from those of his
children.
He was, and
remains,
unable to see the significant harm his behaviour has had, and
continues
to have, on his
children.
That needs to
change.
The father will only be able to bring about
change
through acceptance of this judgment and long term therapy. The
children's
welfare is the
Court's
paramount
consideration.
The
children
![]()
come
first. The father's insight has been, and
remains,
extremely poor.
15. … I make itclear
that the mother and the father must not show the
children
a
copy
of this judgment or share its
contents
with them until the LA (in
consultation
with the therapists)
consider
it appropriate. The
children,
particularly A, already know far too much about these proceedings and far more than it is healthy for them to know. It is
clear
to me that the father is
responsible
for most of the
children's
difficulties, their broken
relationship
with the mother and the psychological harm they have suffered and
continue
to suffer. The father does not agree. He blames the mother, the social worker and the
Court.
He is pitted against everyone and he has drawn the
children
into his feeling and belief that it is him and the
children
against the
rest
of the world. He is unable to see the harm he is
causing
to the
children
and how distorted his view is.
…
20. … It is by no meansclear
to me that the father will properly engage with the
recommended
therapy. He has no insight whatsoever into the difficulties and harm he has
caused
to the
children
and to the mother. He has a very long way to go before he
can
be
considered
to be an emotionally and psychologically safe parent. I am sure he
can
keep the
children
physically safe but that is just one part of the picture and it is absolutely
clear
to me that he does not get the whole picture even after
reading
the detailed experts'
reports
and hearing the experts'
clear
and unanimous views.
Regrettably,
the father
remains
firmly in denial. I hope that
changes
because he
clearly
has a lot to offer the
children
but only when he is able to meet the
children's
emotional and psychological needs. His secret
communications
with the
children
and damaging influence over them has to stop. He is setting the
children
on a road to significant mental health issues, which are likely to have long lasting effects on their ability to function on a day to day basis, both as
children
and as adults. The
content
of A's emails and his
concerning
behaviour and inability to manage his
responses
and emotions are a
real
![]()
concern.
The way in which A mirrors the father's distorted views and treatment of people he disagrees with is very
concerning,
as is his
control
and influence over B. The father must give the
children
peace and space to
recover.
21. Whether the father will abide by the direction not to havecontact
with the
children
![]()
remains
to be seen. He has blatantly breached the order he agreed to by passing on a bracelet and message to B via another
child
in B's school after the
children
had been
removed.
He knew the
reason
behind the
children
having no
contact
with him and the mother. He appears to have no
respect
for
Court
orders. He does not accept the
clear
and unanimous' views of the experts and all the professionals involved in this
case.
He seems to be determined to do as he pleases whatever the
consequences.
As far as he is
concerned,
he is right and everyone else is wrong... The risk of harm to the
children
from the father is significant and ongoing and the father
currently
shows no indication of
changing
his behaviour.
22. An applicationcan
be made in the future to discharge the
care
order once the
recommended
therapy has progressed far enough to ensure that it is safe for the
children
to
return
home. These proceedings have lasted
considerably
longer than the statutory 26 weeks."
"Has the father given A access to documents and information that A should not have seen/known about?
174. I find that he has. The 2020 screenshotclearly
shows a
conversation
between the father and A in which A tells the father that he has deleted the police emails. A should not have seen police emails. He is a
child.
A has
complained
about documents not having been included in the bundle. A has seen the mother's statement in the NMO proceedings. He has either been shown the documents by the father or the father has left them lying around for the
children
to see or the father has told him about them. Whichever it is, it is not appropriate for a
child
(and A is still a
child)
to see these documents or know about what is/is not included in the
court
bundle. More likely than not, the father has shown A the mother's statement and has told A about documents "missing" from the bundle. The father's inability to see the harm he is
causing
to A and B by sharing details about these proceedings is staggering."
"62. Dr Bourne's independentreports
on A's and B's
competency
to instruct
solicitors
are evidence based,
reasoned
and
clear.
He
clearly
![]()
researched
the
relevant
questions and approached the assessment with an open mind and with knowledge of the
children
and the family dynamics. I have no hesitation in accepting them. Dr Bourne's evidence was that A's emotional maturity was not higher than expected for a
child
of his age and it was
compromised
by the influence of the father. Dr Bourne was
concerned
by A's insistence that it would not be a problem if he had access to the full bundle. He said that there was something about A's general narrative that deviated so far from
reality
that it indicated that it was
compromised.
B was
clearly
not
competent.
She was
confused,
withdrawn and in an emotional mess. Dr Bourne was struck by the
clarity
in what B said about
contact
(
repeating
the father's words)
compared
with her
confusion
about other matters. Dr Bourne's view was that neither of the
children's
executive functioning was developed. If A instructed his own
solicitor
but did not get what he wants, it would be more damaging for A because whilst he would get the power, he would not get the
result.
If he does not get the
result,
A will say that the
Court
is wrong and will adopt the father's attitude. Dr Bourne
considered
that to be more harmful to A. It was important that A got the message that it was for the adult professionals to make decisions in his best interests.
…
Are either of thechildren
![]()
competent
to instruct their own
solicitors?
179. I find that they are not. Neither of them has the level of emotional maturity needed to instruct their ownsolicitors.
They do not understand how the
court
process works. They are solely focused on their wishes and feelings and do not understand that those wishes and feelings are part of the overall picture and have been
communicated
loud and
clear
to the
Court.
They do not understand that their wishes and feelings may not be the same as what is best for them. I accept Dr Bourne's assessment on this issue.
180. Both of thechildren
are heavily influenced by the father. They
cannot
think for themselves. Their views, wishes and feelings have been influenced and distorted by the father. The
children
have been properly
represented
by the Guardian and by Ms Gaff. The Guardian and Ms Gaff have both informed the
court
about the
children's
wishes and feelings. The
Court
is in no doubt whatsoever about the
children's
wishes and feelings. There is nothing more that the
Court
![]()
could
be told that it does not already know about the
children's
wishes and feelings. The father accepted that in his oral evidence. Instructing another
solicitor
would have added nothing. It would not have given the
children
what they want because what they want is
clearly
not in their best interests. Neither of the
children
are
competent
to instruct their own
solicitors.
Even if they were, the outcome would be the same. Giving the
children
what they want is not the same as giving the
children
what they need."
The discharge applications
"We haveconsidered
at some length the question of the risk of harm in A having to be given enough information to make an informed instruction, and that he might then feel
responsible,
himself, for any outcome that he does not want or agree with. As noted, A already and still talks as if he has excessive
responsibility
for his own outcomes, again something I believe that he has absorbed and been encouraged to think because of the way his father talks to him.
I believe therefore that there is a very high risk of emotional damage to A if he does instruct his ownsolicitor
yet the outcome is still not what he wants. He will feel even more
responsible
for this, and potentially for anything his father is upset or angry about. A believes that his own
solicitor
will
represent
his views more 'purely' (my word) than a Guardian would and therefore that the outcome of the
case
is more likely to be agreeable to him. I believe that A is mistaken to think this; this in itself is not surprising in his situation, but I believe this
compounds
the possible damage just described as it then fuels A's
consequent
feelings of getting it wrong.
Inconclusion
then, I would still say that the majority of the areas under
consideration
outlined above lead to a view that A is not
competent
to instruct his own
solicitor.
The main arguments 'for' his doing so
remain
his overall intelligence and his strength of feelings about this, even if that is in part based on false beliefs or premises. But the origins of those beliefs very much
reflect
the lack of independence of thought that A has been able, or allowed, to develop. The argument against his having sufficient independence to instruct, and the harm done through assigning him that level of authority and
responsibility,
is in my opinion very strong, and therefore means that A is not
competent
to instruct his own
solicitor."
"He is young at 14 years, and although he gives the impression possibly of being older, he is quite immature.
…
A isclose
to his father, and he is influenced by his views. Father is quite dominant, and A is rather young, and to a degree immature, and, therefore, less able to form his own independent views."
Asked about how Acould
be supported at school, Dr James wrote:
"I think that it will be important to makeclear
to A that there is a world outside of the
court
proceedings, foster
care,
acrimonious parental arguments; and the best way to ensure this is for his schooling to focus upon the academic work, forthcoming GCSEs and his need to look towards university et
cetera–
the normal routine, expectations for a healthy adolescent today. In other words, focusing on some normalcy."
The meeting with the children
"J – Are you glad youcame
to see me or has it not been good? You
can
be honest. I won't mind.
A - I am not sure what has beenclarified.
![]()
J – For me, it's always better to see somebody if they want to see me. I am not taking evidence but there will be bits of what you have said to me that will stick with me. I willcertainly
![]()
remember
how tall you are and how mature you are. I know that families and lives are not frozen in time. Things happen and things move on. It does not stand still. I hope that there is less of a whirlwind and that it is easier to find a way through. It's a bit like being in a sandstorm. If you are in a sandstorm, you
can't
see where you are going. Where we have got to now is better than where you were before. But it's not simple. It's important that your voice is heard. It has been helpful for me to see you. It is not necessary that I see every
child.
I don't need to see every single
child.
But I think it helps me.
A – Tocontinue
your analogy about a sandstorm, I want to give you goggles and a
compass.
J – Youreally
are mature. That's very
clever."
"This is sick andcriminal
because you know that and you go on. I wonder if you all have pleasure doing this. What do you want? How many times I heard that everything was for my best interest and my wellbeing. You got it all wrong and you go on.
…
B and I had the worse people wecould
imagine to
care
about us. You were all wrong on everything. I will never
change
my mind. I want to live with papa and B.
…
After that meeting, [fostercarer]
told me I have been excellent with the judge so nobody, no doctors
can
write that I
can't
have my own lawyers. You probably are scared because I will
read
things that are
crazy.
I told the judge that one day I will
read
everything anyway so I want everything now.
I asked many times to have separaterepresentation.
Mr Bourne always argued that I
couldn't
instruct
solicitors
but I did it many times with the guardians and now with the judge. This has been so stupid and abusive. In
reality
nobody wants us to express our wishes and feelings, but mostly nobody wants us to
read
all the
court
documents. I said to the judge that one day I will [have] access to all documents and I'm sure that I will find a lot of wrong and sick things. I will use all my rights and will take people to
court
for everything that the family
court
people have done to me."
"An individual'scapacity
to
carry
out a specific task, in this instance instructing their own
solicitor,
![]()
changes
over time, and this is
clearly
the
case
for a
child
as they get older. Hence
reconsidering
the question some seven months later than my more
recent
assessment, is a
reasonable
exercise to undertake.
That said, havingre-read
what I wrote both in 2021 and [2022] about this, and having
read
the Note from A's
recent
meeting with the Judge, my view is that the various issues and factors which I discussed, have not
changed.
The risk of influence from the father
remains
the same, hence also the risk of 'parroting' and any 'alienation' that has taken place.
The 'balance of harm' exercise – the harm of instructing vs the harm of not instructing –remains
![]()
relevant
and the factors that are on each side of those scales are still apparent. If A does not
receive
permission to instruct his own
solicitor,
he will likely feel deprived of what he thinks would have been best for him and that he has not had any 'agency' – power – to influence proceedings. If he does
receive
that permission and especially if he does not agree with the Judge's eventual decisions, there is an increased risk of his feeling over-
responsible
for the 'wrong' things happening. So whereas it seems to me unlikely that A instructing his own
solicitor
will affect the overall outcome of the
case
(although A, I think, believes it would), A's sense of
responsibility
may be increased if he does instruct his
solicitor.
…
I am suggesting, then, that this written discussion is a 'revisiting'
of the
capacity
question which
comes
to the same
conclusion
and notes the difficult balance between the two sides of a question, both of which have merit, and which is for the
court
to decide. My own
conclusions
though have not
changed."
The children's
solicitor's
application
"Thechild's
![]()
solicitor,
notwithstanding the
recent
supplemental
response
from Dr Bourne, would invite the
Court
to make an order for separate
representation
of A. A is intelligent and is rising 15. He engaged with the Judge on 8th March and demonstrated an ability to understand the proceedings. He was able to articulate pertinent questions and to listen to
responses.
Whilst the
child's
![]()
solicitor
understands and agrees with Dr Bourne's view that A
can
often express his father's views, she takes note of the various authorities which emphasise that the influence of a parent on a
child's
views should not be given too much weight in the gauging of whether a young person has sufficient understanding to give instructions to their own
solicitor."
![]()
"The 2,111 page bundle prepared by the Local Authority was not sent directly to the Judge. It was sent by the Local Authority to the Judge'sclerk
(but not to the
Court
office or to the Judge) on 22nd May 2023 (at 15:39) when the Judge's
clerk
was on leave with an out of office message on. It was not
resent
to the
court
office or to the Judge. The Mother's position statement was also sent to the Judge's
clerk
(and not to the
court
office or the Judge) when the Judge's
clerk
was on leave on 23rd May 2023 (at 10:54) with an out of office message on. The Local Authority's
case
summary was sent to the Judge's
clerk
on the day of the hearing (24th May at 12:26). The hearing was listed to start at 2:00pm. The Judge
received
the 2,111 page bundle, the Local Authority's
case
summary (6 pages) and the Mother's position statement (15 pages) at various points during a full list on the day of the hearing (24th May 2023). The
Court
did not adjourn the application but heard the evidence and submissions and gave an extempore judgment (finishing at around 6pm) to avoid further delay, particularly bearing in mind the listed Issues
Resolution
Hearing/Early Final Hearing on 27th June 2023 and the lack of other time in the diary to list this application before then or within a
reasonable
timescale."
The judge's decision
"7. A is a young man. He is still achild
but he is a young man, very tall, who I had the benefit (and it was a benefit) of meeting on 8 March 2023, when Ms Gaff and A's foster
carer
also attended
court.
When I met him, I was struck by quite how intelligent and articulate a young person A was. I was struck by his maturity, by his ability to maintain a
calm
presentation, particularly when I am told now (and I had not appreciated it at the time) that he had, just minutes before, learnt about the event that his sister had had arranged for her, which he had not been told about or invited to. I was aware when he
came
in to see me that he did not know about it at the time, but I had not appreciated until today that it was only a matter of minutes before he
came
in to see me that he was told about it. He was entirely
calm
during his meeting with me -
calmer,
I have to say, than a lot of parents that I see in
care
proceedings. That news, I know, was devastating for him… But he was
composed.
He was articulate. He was mature and he is
clearly
intelligent.
8. There was a particular part of theconversation
I had with him, which I think
related
to a
compass
but I would have to look the note of the
conversation
up and I have not had time to do so today, which made it absolutely
clear
to me that, whatever the thoughts are about whether the father has influenced A or not in the past, and I have made findings in
relation
to that, the
conversation
he had with me and the matters which he
responded
to me about were entirely from him. It was a dynamic
conversation.
He did not have an earpiece into which the father was speaking to him. He
responded
to an analogy and I thought that what he said was very mature, very intelligent and very insightful.
9. A has, for some time now, had very strong views about separaterepresentation.
It is something that has been raised in the background on a number of occasions, but it was not until
relatively
![]()
recently
that the guardian made the formal application. It has been
clear
to me for some time, and
certainly
following my meeting with A, that he does not have much trust or
confidence
in the system. He does not trust the process. He does not trust the guardian. He does not trust the social worker. He does not trust the therapist. He
certainly
does not trust Melanie Gill and it may be that he does not trust me, I do not know. But what he feels very strongly is that his voice is not being heard. That is something that the
court
has to take very seriously when that is what a 14, nearly 15, year old mature young person is saying."
"18. The headline legal principles for this judgment… is that thecourt
has to look at the
child's
understanding and the issue of "sufficient understanding" is set out in the mother's position statement as well. It
relates
to understanding the nature, purpose, benefits, risks and
consequences
of proceedings, the ability to
retain
information discussed, to use and weigh the information and to
communicate
decisions to others. I have no doubt that A ticks all of those boxes from my discussions with him and my understanding of this
case,
and I have been the judge involved in this
case
throughout.
19. Turning to thecase
of
Re
W, the
relevant
passages are set out on p.4 of the guardian's position statement. It is right to say that the fact that A's view
coincides
in this
case
with the father's view does not mean that it is not A's own view. There was some discussion with Dr Bourne at the hearing today about whether A has been parroting the father's view or whether he has been parroting them and now that view is entrenched as part of A's view. My own sense, having met with A, is that he believes what he says, that that is now his view, and when I discussed matters with him (and I did not question him about things, because that is not the role of a judge meeting a
child)
and dealt with the matters he raised, it was
clear
to me that A has a view of his own. Whether it is right or wrong, it is his view. There is, of
course,
a risk of harm to A in not participating in the litigation. That is something that is
referred
to in the
case
of
Re
W.
20. Thecase
of
CS
v SBH talks about the intelligence of the
child,
the emotional maturity of the
child,
![]()
reasons
for wishing to instruct a
solicitor,
understanding of the issues, understanding of the process of the litigation and the
court's
assessment of the risk of harm to the
child
of direct participation balanced against the risk of harm arising from excluding the
child
from direct participation. It is right that it is the
court
that
remains
the ultimate arbiter of whether the
child
"has understanding or sufficient understanding to act without a Guardian." I think that that is an important point to
remember
because, as in all
cases
where experts are involved, the expert provides a view but it is the
court
that takes that view of the expert into account but
considers
it against everything else that the
court
knows. The expert's view is not determinative. It is one part of the evidential jigsaw, and that applies to Dr Bourne's evidence today. It is the
court
that makes the ultimate decision."
"23. Dr Bourne has beenconcerned,
both in his
reports
and at the hearing today (and it is something that is
reflected
by the mother and also by the local authority) that there may be a negative impact on A if he is separately
represented
and ultimately the decision at the final hearing does not go in his favour. It is said that he might feel
responsible.
On the other hand, it is said that if he is given separate
representation
or allowed to have separate
representation,
that he might feel empowered and it might validate his negative views of his mother. It is said that separate
representation
may impact A's
relationship
with B and that it might impact B's progress in spending time with her mother. It is said that it might impact his life and his studies. But it is pretty
clear
to me from my involvement in this
case
and from having met A that this litigation forms a very large part of his life. He is preoccupied by it as it is. He may well find it difficult to
read
summaries about what his parents and the other professionals are saying. He may find it difficult to
read
documents if he gets to see documents in these proceedings. These are all
concerns
and they are all valid
concerns
held by Dr Bourne, held by the mother and also held by the local authority."
"28. Drawing all these matters to aconclusion,
![]()
considering
the balancing exercise, I agree that this "more an art than a science" and I have had to step back and see where I think the answer lies. I
consider
that at this stage the answer is pretty
clear.
I am satisfied and find that A does need separate
representation.
I was unsure about that before I met with him earlier this year. Having met with him on 8 March 2023, as I say, I was surprised at just how articulate, intelligent and mature he is. That is not to say that he will not find separate
representation
difficult in terms of schoolwork and in terms of whether or not it gives him the answer that he wants, but I have to balance that against the fact that he is
clearly
thinking a lot about these proceedings, that he is
clearly
preoccupied by these proceedings (his long list of matters that he brought to the meeting with me made that quite
clear),
and the likelihood that if he is told again that he does not have sufficient understanding and does not meet the various
criteria
set out in the authorities to get separate
representation,
that that is likely to be more harmful to him than him having the ability to participate.
29. I doconsider
that he is sufficiently intelligent, that he has sufficient understanding and, from my assessment of him, I do think that he is emotionally mature enough to be able to instruct
solicitors.
He has a strong and
clear
wish, and has had for some time, to have his voice heard. He does not feel that he is being heard in these proceedings. He has a mistrust of professionals, which may include the
court.
I am not
concerned
about that. But he has a mistrust of the guardian, who is
representing
his interests, and whilst he may have been thought to have been parroting his father's views, whether that is right or wrong (and I make no findings beyond the findings I have already made), he has his own
clear
view and he needs to have
confidence
in the process and to have
confidence
that the important decisions about his future, a boy who is approaching the age of 15, will be properly put before the
court.
![]()
30. I am satisfied andconfident
that
competent
![]()
solicitors
will be able to identify whether or not A is running the father's
case,
as is the
concern.
I do not have
concerns
about that, having met with A. I think he has his own views, whether they are right or wrong, and I do not believe, from my assessment, that he is now the mouthpiece of his father.
31. I am satisfied that he understands the process and that he understands that his wishes and feelings are part of the matters which thecourt
has to
consider,
and that is from my discussions with him. I made it
clear
to him, I believe, that he is not
responsible
for decisions and I think that was something I raised in my letter to the
children
some time ago.
32. As far as the risk that he would feelresponsible
is
concerned,
that will be managed by the
court,
by the professionals around him and by his own
solicitor.
He is a sufficiently mature
child,
I think, to understand that the
responsibility
for decisions is with the
court
and if, ultimately, the
court
does not agree with him, then I am
confident
that he will not blame himself, but will blame others, including me and other professionals who took a view which is against his. But I am
confident
that he will not feel
responsible.
More importantly, he will want his voice to be heard and I believe that he will feel frustrated if he is not able to have his voice heard in the way that he
clearly
wants.
33. I amconscious
that I am not imposing too high a level of understanding on A, as the
cases
say that I should not. I am satisfied that the risk of harm is higher if he is not afforded separate
representation.
He does have a
clear
understanding of the issues in this
case.
He might not agree with the professionals, but that is not a
reason
to
refuse
him separate
representation.
The decisions to be made are extremely important in
relation
to his future. He is nearly 15 and, as I say, I
consider
him to be a mature,
reflective
(to some extent), but an intelligent young man and I
consider
that the time has now
come
for him to be separately
represented.
That is my decision."
The appeal
1) Error in the judgerelying,
or overly
relying,
on her own evaluation of A from meeting him.
2) Procedural unfairness in the judgerelying
on her own evaluation without the parties being aware of it until after she made her decision.
3) Error in placing insufficient weight on theclear
![]()
conclusions
of Dr Bourne;
4) Error in giving insufficientconsideration
of the extent to which A had been alienated by the father and the impact of this on the sufficiency of his understanding.
5) Error in giving insufficientconsideration
to the
consequences
for B of separate
representation
for A.
The second ground is not one for which permission was given by King LJ but I would admit it as being aconsequential
aspect of the first ground. The fifth ground
rested
on Dr Bourne's view that for B to know that A is separately
represented
would risk derailing the progress she has made in
rebuilding
her
relationship
with her mother. However, it was not strongly
relied
on, and I will say no more about it.
Children
instructing
solicitors
"1. States Parties shall assure to thechild
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.
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2. For this purpose, thechild
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."
"(1) Subject to paragraphs (2) and (4), asolicitor
appointed –
(a) under section 41(3) of the 1989 Act; or
(b) by thechildren's
guardian in accordance with the Practice Direction 16A,
mustrepresent
the
child
in accordance with instructions
received
from the
children's
guardian.
(2) If asolicitor
appointed as mentioned in paragraph (1)
considers,
having taken into account the matters
referred
to in paragraph (3), that the
child
–
(a) wishes to give instructions whichconflict
with those of the
children's
guardian; and
(b) is able, havingregard
to the
child's
understanding, to give such instructions on the
child's
own behalf,
thesolicitor
must
conduct
the proceedings in accordance with instructions
received
from the
child.
![]()
(3) The matters thesolicitor
must take into account for the purposes of paragraph (2) are –
(a) the views of thechildren's
guardian; and
(b) any direction given by thecourt
to the
children's
guardian
concerning
the part to be taken by the
children's
guardian in the proceedings.
…"
"The Act of 1989 enables andrequires
a judicious balance to be struck between two
considerations.
First is the principle, to be honoured and
respected,
that
children
are human beings in their own right with individual minds and wills, views and emotions, which should
command
serious attention. A
child's
wishes are not to be discounted or dismissed simply because he is a
child.
He should be free to express them and decision-makers should listen. Second is the fact that a
child
is, after all, a
child.
The
reason
why the law is particularly solicitous in protecting the interests of
children
is because they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will
react
and the imagination to know how others will
react
in
certain
situations, lacking the experience to measure the probable against the possible. Everything of
course
depends on the individual
child
in his actual situation. For purposes of the Act, a babe in arms and a sturdy teenager on the verge of adulthood are both
children,
but their positions are quite different: for one the second
consideration
will be dominant, for the other the first principle will
come
into its own. The process of growing up is, as Lord Scarman pointed out in Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.
C.
112, 186B, a
continuous
one. The judge has to do his best, on the evidence before him, to assess the understanding of the individual
child
in the
context
of the proceedings in which he seeks to participate."
"26. In my judgment, the rule is sufficiently widely framed to meet our obligations tocomply
with both Article 12 of the UN
Convention
and Article 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."
and
"29. In testing the sufficiency of achild's
understanding I would not say that welfare has no place. If direct participation would pose an obvious risk of harm to the
child
arising out of the nature of the
continuing
proceedings and, if the
child
is incapable of
comprehending
that risk, then the judge is entitled to find that sufficient understanding has not been demonstrated. But judges have to be equally alive to the risk of emotional harm that might arise from denying the
child
knowledge of and participation in the
continuing
proceedings."
"36. Sometimes there will be aclear
answer to the question whether the
child
is able, having
regard
to his or her understanding, to give their own instructions to a
solicitor.
In
cases
of more difficulty, the
court
will have to take a down to earth approach to determining the issue, avoiding too sophisticated an examination of the position and
recognising
that it is unlikely to be desirable (or even possible) to attempt to assemble definitive evidence about the matter at this stage of the proceedings. All will depend upon the individual
circumstances
of the
case
and it is impossible to provide a route map to the solution. However, it is worth noting particularly that, given the public funding problems, the judge will have to be sure to take whatever steps are possible to ensure that the
child's
point of view in
relation
to separate
representation
is sufficiently before the
court.
The judge will expect to be guided by the guardian and by those
solicitors
who have formed a view as to whether they
could
accept instructions from the
child.
Then it will be for the judge to form his or her own view on the material available at that stage in the proceedings, sometimes (but
certainly
not always) including expert opinion on the question of understanding (see
Re
H (A Minor) (
Care
Proceedings:
Child's
Wishes) (supra) at page 450). Understanding
can
be affected by all sorts of things, including the age of the
child,
his or her intelligence, his or her emotional and/or psychological and/or psychiatric and/or physical state, language ability, influence etc. The
child
will obviously need to
comprehend
enough of what the
case
is about (without being expected to display too sophisticated an understanding) and must have the
capacity
to give his or her own
coherent
instructions, without being more than usually inconsistent."
"Understandingcan
be affected by all sorts of things, including the age of the
child,
his or her intelligence, his or her emotional and/or psychological and/or psychiatric and/or physical state, language ability, influence etc. The
child
will obviously need to
comprehend
enough of what the
case
is about (without being expected to display too sophisticated an understanding) and must have the
capacity
to give his or her own
coherent
instructions, without being more than usually inconsistent."
The assessment will becase-specific.
It will not be driven by welfare factors, or by a theoretical
comparison
between protection and autonomy, but by a practical assessment of the
child's
understanding in the particular
context
of the
case.
There are no presumptions and
care
will be taken not to over-value any particular feature. The
consequence
of a sound assessment will be that the
child's
rights and interests are
respected
and preserved.
Children
meeting judges
"Purpose
The purpose of these Guidelines is to encourage Judges to enablechildren
to feel more involved and
connected
with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge's task.
Preamble
In England and Wales in mostcases
a
child's
needs, wishes and feelings are brought to the
court
in written form by a
Cafcass
officer. Nothing in this guidance document is intended to
replace
or undermine that
responsibility.
![]()
- It is
Cafcass
practice to discuss with a
child
in a manner appropriate to their developmental understanding whether their participation in the process includes a wish to meet the Judge. If the
child
does not wish to meet the Judge discussions
can
![]()
centre
on other ways of enabling the
child
to feel a part of the process. If the
child
wishes to meet the Judge, that wish should be
conveyed
to the Judge where appropriate.
- The primary purpose of the meeting is to benefit the
child.
However, it may also benefit the Judge and other family members.
Guidelines
1. The Judge is entitled to expect the lawyer for thechild
and/or the
Cafcass
officer:
(i) to advise whether thechild
wishes to meet the Judge;
(ii) if so, to explain from thechild's
perspective, the purpose of the meeting;
(iii) to advise whether it accords with the welfare interests of thechild
for such a meeting take place; and
(iv) to identify the purpose of the proposed meeting as perceived by thechild's
professional
representative/s.
![]()
2. The other parties shall be entitled to makerepresentations
as to any proposed meeting with the Judge before the Judge decides whether or not it shall take place.
3. In deciding whether or not a meeting shall take place and, if so, in whatcircumstances,
the
child's
![]()
chronological
age is
relevant
but not determinative. Some
children
of 7 or even younger have a
clear
understanding of their
circumstances
and very
clear
views which they may wish to express.
4. If thechild
wishes to meet the Judge but the Judge decides that a meeting would be inappropriate, the Judge should
consider
providing a brief explanation in writing for the
child.
![]()
5. If a Judge decides to meet achild,
it is a matter for the discretion of the Judge, having
considered
![]()
representations
from the parties -
(i) the purpose and proposedcontent
of the meeting;
(ii) at what stage during the proceedings, or after they haveconcluded,
the meeting should take place;
(iii) where the meeting will take place;
(iv) who will bring thechild
to the meeting;
(v) who will prepare thechild
for the meeting (this should usually be the
Cafcass
officer);
(vi) who shall attend during the meeting – although a Judge should never see achild
alone;
(vii) by whom a minute of the meeting shall be taken, how that minute is to be approved by the Judge, and how it is to becommunicated
to the other parties.
Itcannot
be stressed too often that the
child's
meeting with the judge is not for the purpose of gathering evidence. That is the
responsibility
of the
Cafcass
officer. The purpose is to enable the
child
to gain some understanding of what is going on, and to be
reassured
that the judge has understood him/her.
6. If the meeting takes place prior to theconclusion
of the proceedings –
(i) The Judge should explain to thechild
at an early stage that a Judge
cannot
hold secrets. What is said by the
child
will, other than in exceptional
circumstances,
be
communicated
to his/her parents and other parties.
(ii) The Judge should also explain that decisions in thecase
are the
responsibility
of the Judge, who will have to weigh a number of factors, and that the outcome is never the
responsibility
of the
child.
![]()
(iii) The Judge should discuss with thechild
how his or her decisions will be
communicated
to the
child.
![]()
(iv) The parties or theirrepresentatives
shall have the opportunity to
respond
to the
content
of the meeting, whether by way of oral evidence or submissions."
"59. … during the judicial interview the judge sought to probe and to tease out what, if any,reasons
there were behind K's stated views. In this manner we
consider
that the
conduct
and the
content
of the interview achieved a pivotal status in the judge s evaluation of the
case.
It
can
only have been during, and as a
result
of, that process that the judge
came
to the
central
![]()
conclusion
in her analysis of the
case,
namely that the
child
s wishes and feelings, whilst passionately and emotionally expressed, lacked any rationality. Put another way, the judicial interview provided key evidence on which the judge
relied
in
coming
to her
conclusion.
For the
reasons
that we have already explained, the judge was in error in approaching her meeting with K in this manner. The material gleaned from their encounter goes to the heart of the judge's analysis and, in
consequence,
that analysis
cannot
stand and must,
reluctantly,
be set aside by allowing the appeal."
56. … i) During that part of any meeting between a young person and a judge in which the judge is listening to thechild's
point of view and hearing what they have to say, the judge's role should be largely that of a passive
recipient
of whatever
communication
the young person wishes to transmit.
ii) The purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that thechild
wishes to say. The meeting is primarily for the benefit of the
child,
rather than for the benefit of the forensic process by providing additional evidence to the judge. As the Guidelines state, the task of gathering evidence is for the specialist
CAFCASS
officers who have, as Mr Gupta submits, developed an expertise in this field.
iii) A meeting, such as in the presentcase,
taking place prior to the judge deciding upon the
central
issues should be for the dual purposes of allowing the judge to hear what the young person may wish to volunteer and for the young person to hear the judge explain the nature of the
court
process. Whilst not wishing to be prescriptive, and whilst acknowledging that the encounter will proceed at the pace of the
child,
which will vary from
case
to
case,
it is difficult to envisage
circumstances
in which such a meeting would last for more than 20 minutes or so.
iv) If thechild
volunteers evidence that would or might be
relevant
to the outcome of the proceedings, the judge should
report
back to the parties and determine whether, and if so how, that evidence should be adduced.
v) The process adopted by the judge in the presentcase,
in which she sought to 'probe' K's wishes and feelings, and did so over the
course
of more than an hour by asking some 87 questions went well beyond the passive role that we have described and, despite the judge's
careful
self-direction, strayed significantly over the line and into the process of gathering evidence (upon which the judge then
relied
in
coming
to her decision).
vi) In the same manner, the judge was in error inregarding
the meeting as being an opportunity for K to make
representations
or submissions to the judge. The purpose of any judicial meeting is not for the young person to argue their
case;
it is simply, but importantly, to provide an opportunity for the young person to state whatever it is that they wish to state directly to the judge who is going to decide an important issue in their lives."
"24. The WG endorse the views expressed by ProfessorCooper
which illuminate the flaws inherent in the 2010 guidelines which include the judge meeting the young person to hear their wishes and feelings; however, as alluded to above, it is not part of the judicial function to evidence gather so the wishes and feelings expressed at the meeting
cannot
properly be taken into account when decision making. This a difficult
concept
for any young person to grasp at best; and is misleading as it amounts to saying the judge is here to listen to you but
cannot
take any notice of what you say. It would seem from the Fortin
research
that the paternalistic and interpretive approach to the "evidence" or expressed views of
children
in the past has left them feeling that they were effectively excluded from adult decision making which directly
concerned
them and would affect them for the
rest
of their lives."
Therecommendation
for a Practice Direction has not been acted upon, and it is not
clear
from the Working Group
report
how it would differ from the Guidance.
"44 The foregoing minutes of the meeting also demonstrate some of the difficulties of judges seeingchildren,
particularly in the
context
of the injunction against using such meetings as a means of gathering evidence. Whilst that injunction has an entirely legitimate procedural and forensic foundation, it
can
place judges in some difficulty where it is inevitable that, upon meeting a
child,
a judge begins to form an impression of the
child,
to see how the presentation of the
child
![]()
compares
to that
contended
for by the parties and, as in this
case,
to hear statements from the
child
that may be
relevant
to the issues that the
court
is tasked with deciding. This is a predictable and unavoidable
consequence
of meeting and talking to
children.
In this
case,
meeting the
children
![]()
resulted
in them telling me directly that they objected to
returning
to Hungary, and their emotional presentation when articulating their objections gave me some impression of the potential impact of such a
return
on their emotional wellbeing.
45 How is a judge to treat such information? On the basis of the Guidelines for Judges MeetingChildren
who are subject to Family Proceedings and subsequent authority, the judge may not
rely
on that information as evidence in the proceedings. Against this, where the judge, as in this
case,
![]()
considers
that what he or she has seen in the meeting with the
children
may have some
relevance
to the issues to be determined in the proceedings, it would be entirely artificial, and potentially unjust simply to banish those matters from his or her mind without more. Within this
context,
it may be said that the injunction against using a meeting with the
child
as a means of gathering evidence
contained
in the Guidelines for Judges Meeting
Children
who are subject to Family Proceedings is far easier to articulate in theory than it is to apply in practice.
46 On the face of the 2010 Guidelines, the difficulties I have articulated fall to be dealt with pursuant to paragraph 6(iv) of those guidelines, which paragraph provides that the parties or theirrepresentatives
shall have the opportunity to
respond
to the
contents
of the meeting, whether by way of oral evidence or submissions. In this
case,
having heard submissions from the parties on the
content
of my meeting with the
children,
I decided that, in light of my
concerns
about the
children's
presentation during the
course
of the meeting and having
regard
to the issues raised in this
case,
the appropriate
course
was to authorise the joint instruction of an independent expert in the manner that I have already described."
"71 … First, it is strongly arguable that the judge was not equipped properly to gain any insight into AH's wishes and feelings from his visit. Hercomplex
medical situation meant that he was not qualified to make any such assessment. If the visit was used by the judge for this purpose, the validity of that assessment might well
require
further evidence or, at least, further submissions.
72 Secondly, in order to ensure procedural fairness, the parties needed to be informed about this and given an opportunity to make submissions."
Sir Andrew MacFarlane P emphasised (para. 78) that there must be:
"clarity
over the purpose of the encounter and focus on the fact that at all times the judge is acting in a judicial role in ongoing
court
proceedings which have yet to be
concluded."
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Application to the present appeal
"[The father] is setting thechildren
on a road to significant mental health issues, which are likely to have long lasting effects on their ability to function on a day to day basis, both as
children
and as adults." (para. 20)
"The risk of harm to thechildren
from the father is significant and ongoing and the father
currently
shows no indication of
changing
his behaviour." (para. 21)
"Both of thechildren
are heavily influenced by the father. They
cannot
think for themselves. Their views, wishes and feelings have been influenced and distorted by the father." (para. 180)
and much more in the same vein.
"The main arguments 'for' his doing soremain
his overall intelligence and his strength of feelings about this, even if that is in part based on false beliefs or premises. But the origins of those beliefs very much
reflect
the lack of independence of thought that A has been able, or allowed, to develop. The argument against his having sufficient independence to instruct, and the harm done through assigning him that level of authority and
responsibility,
is in my opinion very strong, and therefore means that A is not
competent
to instruct his own
solicitor."
Lady Justice Elisabeth Laing:
Lord Justice William Davis: