Mabon v Mabon & Ors

Under rule 9.2A(6) of the Family Proceedings Rules 1991, the court must permit a child to continue proceedings without a guardian ad litem if the child has sufficient understanding to participate. Understanding must be assessed individually and in the context of the remaining proceedings.

Welfare concerns may bear on that assessment where direct participation poses a risk the child cannot comprehend. They do not justify treating welfare as paramount or excluding an articulate teenager from proceedings that fundamentally affect family life. The assessment must also recognise the child’s autonomy and rights of expression and participation under article 12 of the United Nations Convention on the Rights of the Child 1989 and article 8 ECHR.

The parents had separated and proceedings concerning the residence of their six children were under way. The three eldest children, then aged 17, 15 and 13, sought to replace the guardian ad litem with their own solicitors for the remaining disposal hearing.

His Honour Judge Dixon, sitting in the Salisbury County Court, refused their renewed application under rule 9.2A(4) of the Family Proceedings Rules 1991. He considered that independent representation offered little advantage and risked delay, emotional harm and exposure to litigation.

The children appealed. The central issue was whether they had sufficient understanding to participate as parties without a guardian ad litem for the remaining stages of the proceedings.

1. Appeal allowed unanimously. Thorpe LJ, with whom Latham and Wall LJJ agreed, held that the judge was plainly wrong to refuse separate representation. The court made the order sought under rule 9.2A(4) of the Family Proceedings Rules 1991 for each of the three children.

2. Rule 9.2A(6) imposed a mandatory consequence. Once the court considered that a child had sufficient understanding to participate in the proceedings without a guardian ad litem, it had to grant leave and remove the guardian. The inquiry concerned the sufficiency of the individual child’s understanding in the context of the remaining proceedings.

3. The guidance in Re S (A Minor) (Independent Representation) (CA) [1993] 2 FLR 437 remained relevant, but had to be applied in a changed setting. The court had to recognise a stronger contemporary appreciation of children’s autonomy and their consequential right to participate in decisions fundamentally affecting family life. Rule 9.2A was sufficiently broad to meet the United Kingdom’s obligations under article 12 of the United Nations Convention on the Rights of the Child 1989 and article 8 ECHR.

4. Welfare was not irrelevant. A court could find insufficient understanding where direct participation created an obvious risk of harm arising from the continuing proceedings which the child could not comprehend. But the court also had to consider the emotional harm caused by denying a child knowledge of, and participation in, those proceedings. For articulate teenagers, freedom of expression and participation could outweigh a paternalistic welfare judgment.

5. These children were educated, articulate and reasonably mature. The fact-finding hearing had ended, and the outstanding disposal decisions directly concerned their residence and contact. Their views could not adequately be represented by a guardian whose proposed case was likely to conflict with them. They had sufficient understanding to participate independently.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 634, the court allowed the children’s appeal and made orders under rule 9.2A(4) of the Family Proceedings Rules 1991.

• Salisbury County Court: His Honour Judge Dixon refused the children’s renewed application to continue the remaining proceedings without their guardian ad litem.