A (Children), Re

Factual and Procedural Background

This is an appeal from a case management order made by Judge Lieven on 4 December refusing permission for the appellant children to be separately represented at an upcoming hearing scheduled to begin one week later. The appeal was heard at short notice, with the Appellants represented pro bono by Attorney Kelly and Company A.

The Appellants are two children: an Appellant (male) aged 16 years and 9 months, and an Appellant (female) aged 15 years and 2 months. By an earlier order granting permission to appeal (23 December), they were permitted to bring the appeal without a litigation friend. The family originates in Afghanistan but is resident in the United Kingdom.

The factual background as set out in the judge's earlier judgment (referenced in the opinion) includes an eldest child (now 21) who was married in Afghanistan at age 16 or 17; earlier proceedings under the Forced Marriage (Civil Protection) Act 2007 began in 2022 and ended in March 2023 after educative work, but fresh proceedings followed when the family travelled to Afghanistan in July 2023 and the third child was found to have been married there while aged 17. The judge found that the children were under extreme undue influence from their parents.

The present (third) set of proceedings concerns the youngest three children. The local authority (Company B) commenced proceedings in August 2024 seeking passport orders in respect of the children until each reaches 18. One sibling (referred to as C in the opinion), now 18 and who has instructed Company A since age 17, was separately represented. A and B were represented by the Children's Guardian appointed by The Agency. The Children's Guardian had issued an application for passport orders and forced marriage protection orders until age 21; that application was dismissed by the judge on 21 October as to the extended age, prompting further steps including a stay and a reconsideration. Judge Lieven set a three-day hearing for 22 January to consider passport orders and extension of forced marriage protection orders.

Legal Issues Presented

1. Whether, under Family Procedure Rules 2010 rule 16.6(6), the Appellants have sufficient understanding to conduct the proposed proceedings without a litigation friend or Children's Guardian, and thus whether they should be separately represented.
2. How the court should balance findings of extreme undue influence/coercion by parents against recognition of older children's autonomy and the practical benefits of direct advocacy for the children.
3. Whether the judge's case management decision refusing separate representation was a proper exercise of discretion in light of relevant factors and precedent.

Arguments of the Parties

Appellants' Arguments

• The judge did not consider all relevant factors and was diverted by her finding of undue influence.
• Reference was made to precedent emphasising children's autonomy and Article 12 of the UN Convention on the Rights of the Child.
• The Appellants sought separate representation under rule 16.6, relying on their Gillick competence, the significance of the orders sought (passport deprivation and long-duration protection orders), and practical advantages in having their own advocates.

Children's Guardian and Company B (Local Authority) — Respondents' Arguments

• The Children's Guardian did not support separate representation before the judge; the local authority was neutral.
• Counsel for the Guardians and Company B (Attorney Jenkins and Attorney Gupta, leading Attorney Mellor) emphasised the judge's stark findings of extreme undue influence and argued the decision to refuse separate representation was open to the judge given the complex circumstances.
• They submitted the judge properly considered how the Appellants' views could fairly be heard (through the Guardian and solicitor) and placed appropriate weight on the Appellants' wishes while remaining alert to undue influence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Precedent A (earlier judgment cited for background)	Provides the background facts of the family and prior findings relied on in the present proceedings.	The court treated that judgment as setting out the factual background, including findings about the eldest child's marriage and undue influence in the family.
Precedent B (referred to regarding children's autonomy)	Cited as heralding growing recognition of children's autonomy and reflecting Article 12 of the UNCRC.	The appellants relied on this authority to support the importance of recognising older children's autonomy; the court noted the point in the context of the appeal.
Precedent C (leading case on separate representation under rule 16.6)	Establishes approach to assessing whether a child can instruct a solicitor: case-specific, broad consideration of factors (age, intelligence, emotional/psychological state, language, influence, etc.).	The court relied on this line of authority (as summarised in the next precedent) to frame the required all-round assessment of the child's ability to instruct in the particular circumstances.
Precedent D (Practice Note summarising principles)	Provides a summary that the central question is whether the child has the ability to instruct a solicitor in the particular circumstances, and lists relevant factors to be considered.	The court quoted and applied the summary to require a broad, case-specific assessment; the court found the judge's ruling did not perform the necessary all-round assessment.
Precedent E (Referred by summary authorities)	Further guidance on understanding being affected by many factors and that the assessment should not be driven by welfare factors alone.	The court cited this guidance to support the view that no single feature (including coercion) should be determinative and that the child's understanding need only be sufficient for the task.

Court's Reasoning and Analysis

The court treated the appeal as purely procedural and confined its reasoning to whether the judge's case management decision refusing separate representation was justified.

Primary legal framework: Family Procedure Rules 2010, rule 16.6(6), which requires the court to grant separate representation if the child has sufficient understanding to conduct the proceedings without a litigation friend or Children's Guardian. The court also relied on established authorities summarised in a practice note setting out that the assessment is case-specific and requires a broad consideration of all relevant factors (age, intelligence, emotional/psychological state, language, influence, opinions from solicitors/experts, etc.).

The court acknowledged the judge's findings of extreme undue influence and coercion. It accepted that such findings must be a major feature of the assessment. However, the court identified multiple relevant factors the judge did not adequately take into account in her short case management ruling:

• The gravity and direct importance of the issues for the children (passport deprivation and forced marriage protection orders extending into early adulthood).
• The potential unfairness and perception problem of the Children's Guardian both advocating for orders adverse to the children and being the party expected to present the children's views.
• The advantages to the court of having direct, unfiltered advocacy from the children themselves and the absence of an effective counterparty to the Guardian and Company B if the children lack separate representation.
• The lack of explanation for treating the near-age sibling (previously separately represented) differently from these Appellants.
• The judge did not identify any negative welfare consequences from separate representation, and respondents were unable to suggest any.
• The observation that forced marriage cases often involve coercion, but coercion alone cannot be determinative of an older child's ability to instruct.
• The practical point that arrangements for separate representation would cause no delay or significant expense.

On that basis, the court concluded that the judge had not performed the necessary all-round assessment required by rule 16.6 and the authorities. The court remade the decision, accepting the seriousness of undue influence but finding that, on balance, the Appellants have sufficient understanding to instruct a solicitor in the circumstances and that separate representation would likely enhance the court's ability to reach a full and accepted resolution of the contested protection issues.

Holding and Implications

Core Ruling: Appeal Allowed; Application for Separate Representation Granted.

Direct consequences and conditions:

• The appeal is allowed and the Appellants are granted permission to be separately represented by Company A on the condition that there is no application for an adjournment of the hearing next week.
• It was not suggested that the hearing should not be conducted by the judge currently assigned to hear the case.
• The Children's Guardian will continue to provide input and remains important to the proceedings, but will not be the sole legally represented advocate for the children's positions.
• The court emphasised that this procedural ruling does not determine substantive issues and that the judge and the court at the substantive hearing will remain alert to the influence of parents and will assess the weight to be given to the children's views when reached on the evidence.

Broader implications:

The opinion does not set a new binding precedent; it applies existing rules and authorities to the specific case facts and emphasises that a careful, all-round assessment is required when deciding whether older children should be separately represented, even in contexts where undue influence is alleged.

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