Factual and Procedural Background
This appeal concerns a 16-year-old girl ("Appellant") challenging orders made by a judge in April and May 2016. The orders related to whether the Appellant should have been permitted to instruct her own solicitor independently of the children's guardian in public law proceedings. These proceedings involved an application by the local authority for a recovery order under a care order previously made in respect of the Appellant.
In 2014, the Appellant and her siblings were subject to care proceedings initiated by the local authority. The Appellant was separately represented during much of these proceedings because the solicitor appointed by the children's guardian considered that the Appellant wished to give instructions conflicting with the guardian's. A judge allowed this separate representation, and the Appellant instructed her own solicitor for the fact-finding and welfare hearings. Findings of physical and emotional abuse were made, and interim care orders were imposed.
The Appellant did not accept the findings and wished to return home, a position maintained through the welfare hearing in March 2015 when a care order was made. Following this, the Appellant absconded from foster care and lived with her grandmother and parents, prompting the local authority to apply for a recovery order in February 2016.
At around this time, the Appellant attempted to apply for discharge of the care order herself but was initially advised she had used the wrong form. The court, however, accepted her application as valid. The local authority's application led to the appointment of a children's guardian, who instructed a solicitor on the Appellant's behalf. The Appellant wished to be represented by her previous solicitor instead, leading to a conflict over her capacity to instruct independently.
The judge ordered a psychiatric report to assess the Appellant's competence to instruct separately. The hearing to determine separate representation was scheduled, but the Appellant's solicitor and counsel were unable to attend, and the Appellant did not attend the psychiatric assessment. The judge refused the Appellant's application for separate representation, relying on concerns about the Appellant's subservience to her parents, her inability to hold independent views, and the risk of harm from direct participation in proceedings.
Subsequently, the judge granted the local authority's recovery order application and dismissed the Appellant's discharge application. The Appellant appealed these decisions, focusing primarily on the refusal to permit separate legal representation.
Legal Issues Presented
- Whether the judge erred in refusing to permit the Appellant to instruct her own solicitor independently of the children's guardian in public law proceedings.
- Whether the Appellant possessed sufficient understanding, having regard to the relevant legal test, to give instructions to her solicitor independently.
- The impact of the refusal of separate representation on the validity of subsequent substantive orders, including the recovery order and dismissal of the discharge application.
Arguments of the Parties
Appellant's Arguments
- The judge failed to give adequate weight to the Appellant’s previous solicitor’s clear view that the Appellant had sufficient understanding to instruct her.
- The judge did not explain why she preferred the guardian’s and guardian’s solicitor’s view over that of the Appellant’s solicitor.
- The judge relied inappropriately on the Appellant’s alignment with her parents and her denial of risks, applying an incorrect test requiring the Appellant to demonstrate independence from her parents.
- The judge wrongly placed a burden of proof on the Appellant to show she was not being used by her parents to conduct litigation.
- The judge improperly considered welfare concerns rather than focusing solely on whether the Appellant had sufficient understanding to instruct a solicitor.
- The judge gave undue weight to the Great Ormond Street Hospital report, despite the Appellant having been separately represented previously without such restriction.
Local Authority and Guardian's Arguments
- The Appellant's capacity to instruct was compromised by extreme subservience to her parents and isolation, rendering her unable to hold independent views.
- The Appellant was being used by her parents to conduct litigation which posed a risk of harm to her.
- The Appellant lacked sufficient understanding of the issues and risks in the proceedings to instruct independently.
- Even if the appeal on separate representation succeeded, the substantive orders could be sustained.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Mabon v Mabon [2005] EWCA Civ 634 |
Test of sufficient understanding for a child to participate without a guardian; recognition of child's autonomy and rights under Article 12 UN Convention and Article 8 ECHR. |
Used as leading authority to frame the legal test for whether the Appellant had sufficient understanding to instruct her own solicitor independently. |
| Re S (A Minor) (Independent Representation) [1993] Fam 263 |
Understanding is relative to the issues in the proceedings and depends on the individual child’s situation. |
Referenced to support the principle that assessment of understanding must be individualized and contextual. |
| Re H (A Minor) (Care Proceedings: Child's Wishes) [1993] 1 FLR 440 |
Consideration of disturbed child and child’s wishes in care proceedings. |
Highlighted as a relevant situation affecting a child’s capacity to instruct. |
| Re H (A Minor) (Role of Official Solicitor) [1994] Fam 11 |
Influence or manipulation of child’s views by family members. |
Used to caution against denying capacity solely based on parental influence without sufficient evidence. |
| Re C (Residence: Child's Application for Leave) [1995] 1 FLR 927 |
Litigation disturbance affecting child’s capacity. |
Referenced to illustrate complexities in assessing child’s understanding in contentious litigation. |
| Re N (Contact: Minor Seeking Leave to Defend and Removal of Guardian) [2003] 1 FLR 652 |
Assessment of child’s capacity in litigation context. |
Supports the nuanced approach to determining understanding. |
| Re F (Children) [2016] EWCA Civ 546 |
Recent developments recognizing children’s autonomy and participation rights. |
Used to affirm the evolving jurisprudence and the need to balance welfare with autonomy. |
| Re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12 |
Guidelines on children giving evidence in family proceedings. |
Referenced to show the trend towards increased child participation. |
| Guidelines for Judges Meeting Children who are Subject to Family Proceedings [2010] 2 FLR 1872 |
Encouragement for judges to enable child involvement in proceedings. |
Supports the principle of facilitating child participation. |
| Re LC (Children) [2014] UKSC 1 |
Recognition of child’s state of mind in legal determinations. |
Illustrates consideration of psychological factors in child-related proceedings. |
Court's Reasoning and Analysis
The court began by identifying the legal test for separate representation as set out in Rule 16.29(2) of the Family Procedure Rules 2010, which requires that the solicitor appointed by the guardian must conduct proceedings in accordance with the child's instructions if the solicitor considers that the child wishes to give instructions conflicting with the guardian and is able, having regard to the child's understanding, to give such instructions.
The judge at first instance had refused the Appellant's application for separate representation primarily on the basis that the Appellant was under the influence of her parents, lacked independent views, and did not understand the risks involved in the proceedings. The judge also considered the risk of harm from direct participation.
The appellate court found that the judge erred by conflating welfare considerations with the question of the Appellant's understanding. The court emphasized that the assessment must focus on whether the child has sufficient understanding to instruct, not on whether the child's views are correct or whether participation is in the child's best interests.
The court noted the significance of the Appellant's prior experience instructing her own solicitor during the care proceedings and the consistent view of that solicitor that the Appellant had sufficient understanding. The judge's failure to adequately explain why she preferred the guardian's and guardian's solicitor's assessment over the Appellant's solicitor's view was a critical flaw.
The court cautioned against placing a burden on the child to prove she was not being used by her parents and against allowing concerns about parental influence to overshadow the assessment of understanding. It also highlighted the practical consequences of denying the Appellant separate representation, including loss of an independent voice and diminished opportunity to engage meaningfully with the proceedings.
The court acknowledged the difficulties posed by the Appellant's failure to attend the psychiatric assessment and the absence of representation at the hearing but underscored the importance of ensuring the child's perspective is adequately presented, particularly given public funding constraints.
Overall, the court concluded that the judge reached the wrong decision and that the Appellant should be permitted to instruct her own solicitor independently. Consequently, the appointment of the guardian's solicitor should be terminated, and the Appellant should be able to instruct her chosen solicitor.
Holding and Implications
The court ALLOWED THE APPEAL and set aside the orders refusing the Appellant separate legal representation, the recovery order, and the dismissal of the discharge application. The court ordered that the appointment of the guardian's solicitor be terminated and that the Appellant be permitted to instruct her own solicitor.
The local authority's application for a recovery order and the Appellant's application for discharge of the care order must be reheard.
This decision directly affects the parties by restoring the Appellant's right to separate legal representation and requiring reconsideration of substantive orders. The court did not establish new precedent but provided detailed guidance on the correct application of the test for separate representation and emphasized the evolving recognition of children's autonomy in legal proceedings.