Factual and Procedural Background
This opinion concerns an appeal against an order made by His Honour Judge Meston QC on 6 November 2018, which dismissed the mother's application to vary an earlier order made in January 2017 that the child should live with her father. The appeal proceeded through unusual preliminary issues relating to the locus of a solicitor, Mr Burrows, to pursue the appeal on behalf of the child. The child, born in 2006, had a Children's Guardian and solicitor appointed during the initial proceedings. A dispute arose over the appointment of the child's solicitor, with Ms Hopkin seeking to be appointed but the Guardian appointing Ms Coyle instead. The child was assessed by Ms Hopkin as competent to instruct a solicitor but Ms Coyle concluded the child was not competent. The child expressed a wish to live with her mother, but the judge refused to vary the living arrangements, citing concerns about the mother's influence and the child's welfare. Following the judgment, further applications and correspondence ensued regarding the child's representation and ability to instruct solicitors. The court was tasked with determining whether the child had sufficient understanding to conduct the appeal without a Guardian and which solicitor had locus to represent the child.
Legal Issues Presented
- Whether an appeal constitutes new proceedings or a continuation of the original family proceedings for the purposes of the Family Procedure Rules (FPR) 16.6.
- Whether the child has sufficient understanding to conduct the appeal proceedings without a Children's Guardian under FPR 16.6(5) and (6).
- Whether a solicitor's assessment of a child's competence under FPR 16.6(3)(b) is determinative or whether the court retains the ultimate authority to decide on the child's competence.
- The proper application and interpretation of FPR 16.6 regarding representation of children in family proceedings, particularly in appeals.
Arguments of the Parties
Appellant's Arguments
- Ms Hopkin, on behalf of the child, argued that the appeal constitutes new proceedings under FPR 16.6(3)(b), meaning her assessment that the child is competent to instruct her is determinative and no court permission is required.
- She emphasized the child's intelligence, articulation, and genuine wish to appeal the order, asserting the child is competent to instruct a solicitor directly.
- She contended that the legal aid regime treating appeals as new proceedings supports the appeal being a fresh proceeding.
- She criticized Ms Coyle's assessment as being made without an expert report and in a vacuum, lacking the full context of the case.
Respondent's Arguments
- The father and the Guardian argued that the appeal is a continuation of the original proceedings, engaging FPR 16.6(5) and (6), whereby the court must decide if the child has sufficient understanding to conduct the appeal without a Guardian.
- They preferred the assessment of Ms Coyle and the Guardian, based on their detailed and recent involvement with the child and full knowledge of the evidence and expert reports.
- They submitted Ms Hopkin cannot be "already acting" for the child under FPR 16.6(3)(b)(ii) because Ms Coyle remains the court-appointed solicitor and the court has not authorized Ms Hopkin's appointment.
- They argued the court retains ultimate authority to determine the child's competence, citing precedent.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278; [1994] Fam 49; [1993] 3 WLR 602 |
Established that the court retains ultimate authority to decide whether a child requires a Guardian despite a solicitor's assessment. |
Used as a key guide to interpret FPR 16.6, affirming the court's role as ultimate arbiter of a child's competence to conduct proceedings without a Guardian. |
| Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7; [1986] AC 112 |
Defines the test for a child's capacity/competence to make decisions based on sufficient understanding and intelligence rather than age. |
Applied to assess the child's competence to instruct a solicitor and participate in proceedings, emphasizing the importance of the child's understanding and intelligence. |
| Re S (A Minor) (Independent Representation) [1993] 2 FLR 437 |
Clarifies the difference and overlap between a child's ability to instruct a solicitor and to conduct proceedings, focusing on understanding rather than age. |
Supported the court's approach in evaluating the child's sufficient understanding to participate and instruct a solicitor. |
| Re N (Contact: Minor Seeking Leave to Defend and Removal of a Guardian) [2003] 1 FLR 652 |
Explains the complexity of a child participating as a party without a Guardian and the court's considerations in assessing competence. |
Informed the court's balancing of the child's autonomy against welfare concerns in determining competence. |
| Mabon v Mabon [2005] EWCA Civ 634 |
Highlights the evolving recognition of children's autonomy and rights in family proceedings, balancing welfare and participation. |
Reinforced the court's approach giving weight to the child's autonomy while considering welfare risks in assessing competence. |
| Re W (A Child) (Care Proceedings: Child's Representation) [2016] EWCA Civ 1051; [2017] 1 WLR 1027 |
Considered the interpretation of FPR 16.29(2) regarding a solicitor's role when a child wishes to instruct separately from the Guardian. |
Guided the court's understanding of solicitor assessments and the court's role in competence evaluation. |
| Fallon v Fallon [2010] 1 FLR 910 |
Confirmed the appeal court's powers to substitute decisions, admit fresh evidence, and rehear matters afresh. |
Supported the view that an appeal is a continuation of proceedings with the appeal court having broad powers. |
| Re M (Republic of Ireland) (Child's Objections) [2015] 2 FLR 1074 |
Addressed children's participation in appellate proceedings and joinder as parties under CPR. |
Referenced in discussing children's participation in appeals, though CPR applies at Court of Appeal level unlike FPR here. |
| Re LC (International Abduction: Child's Objections to Return) [2013] EWCA Civ 1058; [2014] 1 FLR 1458 |
Provided guidance on children's participation in appellate proceedings and appeals. |
Used to contextualize the legal framework for children's involvement in appeals under family law. |
Court's Reasoning and Analysis
The court first examined whether the appeal constituted new proceedings or a continuation of the original family proceedings. Despite some administrative and procedural features suggesting the appeal might be new proceedings (different court, case number, legal aid treatment), the court found the factors indicating continuation of proceedings more compelling. These included the seamless continuation of party status, the appeal court's broad powers to vary or rehear matters, and procedural links between lower and appeal courts.
Accordingly, the court held that the appeal is another stage of the original proceedings, engaging FPR 16.6(5) and (6), which require the court itself to decide whether the child has sufficient understanding to conduct the appeal without a Guardian.
The court then considered the child's competence to conduct proceedings, applying established principles from Gillick and subsequent case law emphasizing that competence depends on sufficient understanding and intelligence relative to the issues at hand, not age alone. The court acknowledged the evolving recognition of children's autonomy but balanced this against welfare concerns.
The court contrasted the assessments of Ms Hopkin and Ms Coyle. Ms Hopkin's assessment, made early and without full access to case materials, found the child competent. Ms Coyle's more recent and informed assessment, supported by the Guardian, found the child not competent, citing emotional immaturity, lack of understanding of the litigation process, and significant influence from the mother.
Weighing all factors, including the child's intelligence, emotional maturity, understanding of the issues and litigation, and risks of harm from direct participation, the court concluded that the child does not have sufficient understanding to conduct the appeal without a Guardian. This conclusion was consistent with the substantive findings of HHJ Meston QC and the overall welfare considerations.
The court also clarified that even if the appeal were new proceedings, it would retain ultimate authority to determine the child's competence, referencing precedent affirming the court's supervisory role.
Holding and Implications
The court's final decision is that the child cannot pursue the appeal without a Children's Guardian. The Guardian remains appointed, and the solicitor appointed by the Guardian continues to act in accordance with instructions from the Guardian rather than directly from the child.
As a direct consequence, the solicitor appointed by the Guardian is not obliged to conduct the appeal based on the child's instructions. The appeal is therefore unlikely to proceed unless the Guardian seeks permission to withdraw it or the appeal is struck out. The court invited the parties to agree on the form of order arising from this judgment or to submit competing versions for determination.
No broader precedent was set beyond the application of existing principles to the particular facts of this case.