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C (Child: Ability to Instruct Solicitor) [2023] EWCA Civ 889

This was an appeal following an order allowing a 14-year-old boy (“A”), to instruct his own solicitor made within proceedings concerning an application by his parents to discharge care orders in respect of him and his sister, who was 13 years old.

Within care proceedings, final care orders were made to protect both children from parental conflict and from behaviour by their father that had severely alienated them from their mother. Within those proceedings, A was assessed to see whether he was competent to instruct his own solicitor. The report following the assessment detailed: "Whereas I acknowledge and agree that there is bound to be some degree of influence over a child 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.”

The expert (Dr Bourne) concluded that A was not competent to instruct his own solicitor. The care proceedings concluded with care orders.

The parents each applied to discharge the care orders. The same expert was instructed to again assess whether A was competent to instruct his own solicitor and again, the expert reached the same conclusion – A was not competent to instruct his own solicitor.

The judge met with the children during the discharge proceedings and a note taken of this meeting. The children’s solicitor then made an application to the court for separate representation of A on the basis “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 father supported the application whereas the mother and local authority opposed it. The judge allowed the application for A to instruct his own solicitor. The mother, supported by the local authority, appealed.

The appeal was allowed. Jackson LJ concluded that “…the decision that A has the ability to instruct a solicitor directly was wrong in the distinctive circumstances of this case.” Further, Jackson LJ took the view there were three errors in the approach of the judge:

  1. It was the judge's role to adjudicate, not to assess, but she made her own assessment of A's ability to instruct in a manner that went well beyond the permissible use of a meeting of this kind;
  2. The reasons given by the judge for her assessment are not sustainable; and
  3. The judge described A as very mature and very insightful, while the evidence from two psychiatrists was that he is emotionally immature and lacking insight.

Helpful points to note from this judgment include:

  • 'children meeting judges' is for the benefit of the child, not the judge [59]
  • The purpose and format of children meeting judges fall under the Guidelines for Judges Meeting Children who are Subject to Family Proceedings, issued by the Family Justice Council and Sir Nicholas Wall P in April 2010 [60]
  • The judge should give close consideration to the Guidance with its numbered guidelines when planning and taking part in a meeting with a child. This will increase the likelihood of the meeting being as valuable as it can be for the child, whilst taking care to ensure that it is not allowed to develop into an evidence-gathering exercise. Where the judge does consider that something of evidential significance has arisen in the meeting, the parties should be made aware [70]
  • FPR rule 16.29(1) provides that the solicitor for the child must conduct the proceedings in accordance with instructions received from the guardian, whose role is to act on behalf of the child with the duty of safeguarding the child's interests having regard to the principles set out in the welfare checklist [48]
  • The guardian must advise the court of the wishes of the child in respect of any matter relevant to the proceedings, including the child's attendance at court: PD16A 6.6(b) [48]
  • Where the solicitor considers, having taken into account the guardian's views and any direction given by the court, that the child (a) wishes to give instructions which conflict with those of the guardian and (b) is able, having regard to the child's understanding, to give instructions on his or her own behalf, the solicitor must conduct the proceedings in accordance with instructions received from the child: rule 16.29(2) and (3). In such a case the guardian will continue to carry out their duties, usually without legal representation [49]
  • The judgment about whether a child has the ability to instruct is quintessentially a matter for the solicitor in the unique circumstances of the case and expert advice will not always, or even usually, be necessary [50]

The judgment can be accessed here C (Child: Ability to Instruct Solicitor) [2023] EWCA Civ 889 (26 July 2023)