A (Children)

Separate representation for a child should be ordered only where the child wishes to give instructions conflicting with those of the Children’s Guardian and has sufficient understanding to give those instructions. A child’s wishes and feelings are ordinarily an ingredient in the Guardian’s welfare assessment and do not, by themselves, establish a conflict. The decision is discretionary and proportionate. Given the expense of separate representation, orders under the rule should be made sparingly. An appellate court should uphold a decision within the ambit of reasonable judgment.

Care orders had been made for two children, with a plan for long-term fostering and continuing parental contact. The parents applied to replace the children’s long-standing Guardian and solicitor, alleging that the Guardian’s position conflicted with the wishes of R. The application was made under Family Proceedings Rules 14.12(1)(a).

His Honour Judge Grant concluded that R lacked sufficient maturity to comprehend and weigh the relevant welfare considerations and that there was no conflict between R and the Guardian. The parents appealed to the Court of Appeal. The central issue was whether the circumstances justified separate representation.

Appeal dismissed. Lord Justice Thorpe gave the leading judgment, with which Lady Justice Arden agreed.

1. Under Family Proceedings Rules 14.12(1)(a), separate representation should not be ordered unless the child wishes to give instructions conflicting with those of the Children’s Guardian and is able, in light of the child’s understanding, to give such instructions.
2. R was bright and articulate, but the judge was entitled to find that he lacked the maturity to comprehend and weigh the complex considerations imported by section 1 and reach a proportionate, balanced conclusion. The court also upheld the finding that there was no conflict of interest.
3. A child’s wishes and feelings are only one ingredient in the Guardian’s review of welfare. Here, R’s expressed wish to maintain contact with his mother, subject to safety and appropriate behaviour, accorded closely with the Guardian’s professional opinion. That did not require the Guardian to withdraw.
4. Separate representation may be necessary in cases of profound conflict, including some cases of post-pubertal adolescent rebellion. It is an expensive arrangement involving two distinct litigation teams and should therefore be ordered very sparingly.
5. The decision involved the exercise of a discretion and a proportionate judgment after relevant considerations had been identified and weighed. The conclusion was within the ambit of reasonable judgment and was also correct. The appeal was dismissed.

1. Court of Appeal (Civil Division): On 9 February 2010, the court dismissed the appeal. [2010] EWCA Civ 208
2. Leeds County Court: His Honour Judge Grant made the order under appeal on 11 June 2009, refusing the application to replace the Children’s Guardian and solicitor.