W (A Child)

When deciding whether a child may instruct a solicitor independently of the children’s guardian, the court must determine whether the child is able, having regard to the child’s understanding, to give instructions on the child’s own behalf. The assessment is individual and relative to the issues. It must recognise children’s autonomy and right to participate.

Agreement with parents, rejection of established findings or disagreement with the guardian’s welfare assessment does not by itself demonstrate insufficient understanding. Welfare must not be confused with understanding. The court should adopt a practical approach, consider the child’s age, abilities, condition, experience and capacity to give coherent instructions, and ensure that the child’s position is sufficiently before it.

A 16-year-old girl appealed against orders made in public law proceedings concerning a local authority’s application for a recovery order and her application to discharge an existing care order. During earlier care proceedings she had instructed her own solicitor independently of the children’s guardian.

The judge refused to terminate the appointment of the guardian’s solicitor. She relied principally on concerns that the child was influenced by her parents, rejected findings previously made against them and did not understand the associated risks. The judge then granted recovery orders and dismissed the discharge application.

The central issue was whether, under rule 16.29 of the Family Procedure Rules 2010, the child was able, having regard to her understanding, to give instructions to her own solicitor.

1. Appeal allowed. The child had sufficient understanding to give her own instructions. The appointment of the solicitor instructed by the guardian was terminated, and the child was permitted to instruct her former solicitor. The recovery order and dismissal of the discharge application were set aside, and both substantive applications were to be reheard.

2. Rule 16.29(2) of the Family Procedure Rules 2010 supplies the applicable standard when the court considers an application under rule 16.29(7). Where the child wishes to give instructions conflicting with the guardian’s, the question is whether the child is able, having regard to the child’s understanding, to give those instructions. No burden rests on the child to prove that the child is free from parental influence.

3. Sufficient understanding depends upon the individual child and the issues in the proceedings. The assessment must reflect the developing recognition of children’s autonomy and their interest in direct participation. A practical approach is required. Relevant matters may include age, intelligence, emotional, psychological, psychiatric or physical condition, language ability, influence, comprehension of the case and capacity to give coherent instructions without unusual inconsistency.

4. The coincidence of a child’s views with those of the parents does not establish that the views are not the child’s own. Nor does disagreement with the guardian’s welfare assessment, refusal to accept earlier findings or a potentially misguided view establish insufficient understanding. Excessive inquiry into influence or acceptance of risk may prejudge matters central to the substantive proceedings.

5. Possible harm from direct participation may be relevant, but the court must avoid converting the inquiry into a welfare assessment. It must also consider harm from exclusion, including disaffection, loss of an independent voice and loss of access to trusted legal advice. Applying Mabon v Mabon [2005] EWCA Civ 634, welfare and understanding are distinct.

6. The first-instance judge gave insufficient weight to the child’s age, previous experience of instructing a solicitor and the informed opinion of her former solicitor. She placed excessive weight on parental influence and the child’s rejection of earlier findings. Tomlinson LJ agreed and identified the essential error as confusing welfare with understanding.

7. Expert evidence will not always be required. If it is sought, the child must receive a clear and trustworthy explanation of the expert’s role and the importance of attending. Legal terminology and psychiatric involvement must be explained without suggesting that the child’s mental health is being impugned.

1. Court of Appeal (Civil Division): Allowed the appeal, terminated the guardian-appointed solicitor’s appointment, set aside the substantive orders and directed rehearing of the recovery and discharge applications: [2016] EWCA Civ 1051.

2. Central Family Court: HHJ Williams refused separate representation on 1 April 2016, granted recovery orders and dismissed the child’s application to discharge the care order on 3 May 2016. No neutral citation is stated.