In the matter of B (Children)

An appeal concerning a child’s separate representation will be dismissed as academic where the care proceedings have concluded and the final care orders are not under appeal. The appellate court cannot set aside a final order that is not before it. The court observed, obiter, that a child’s disagreement with the guardian’s view about future care will rarely, by itself, require separate representation. Such views may ordinarily be addressed through questioning by the child’s solicitor, the other advocates and, if necessary, the judge. It further considered that Children Act 1989, section 41(3), concerns a child not represented by a solicitor. A solicitor appointed by the guardian continues to represent the child unless that representation is terminated, potentially under Family Procedure Rules 2010, rule 16.29(7).

The appeal arose during seven-day care proceedings concerning six children. On the first day of the final hearing, HHJ Glenn Brasse decided that C, aged 13, should be separately represented because her views about future care differed from those of the guardian. Permission to appeal was granted, but the judge refused to adjourn the care proceedings. King LJ later refused a stay, and the proceedings concluded.

The guardian and local authority did not pursue the appeal. The mother argued that C’s Article 6 rights had been breached and suggested that the care order might be set aside. No party had appealed the final care orders. The central issues were whether any live issue remained and whether the representation ruling could affect an order not under appeal.

Lord Justice Moylan delivered the judgment. Lord Justices Holroyde and Irwin agreed. The appeal was unanimously dismissed.

1. The care proceedings had concluded, so the appeal from the earlier representation decision was entirely academic. No party had appealed the final care orders. Those orders were therefore not before the Court of Appeal, and it was not open to the court to set aside the order made in respect of C.
2. The mother’s Article 6 submission could not create a live issue capable of altering that conclusion. The court had not been asked to determine an appeal against the final care orders.
3. As an additional observation, the court considered that a child’s views about future care differing from those of the guardian will rarely require separate representation. The issue could ordinarily be addressed by questions from the child’s solicitor, acting with the other advocates and, if necessary, through questions from the judge.
4. The court further observed that Children Act 1989, section 41(3), applies where the child is not represented by a solicitor. C was represented by a solicitor appointed for her by the guardian. Until that representation was terminated, possibly by an application under Family Procedure Rules 2010, rule 16.29(7), the solicitor remained instructed on C’s behalf. This construction was expressed without full argument and was not necessary to the disposition.

Order: appeal dismissed.

• Court of Appeal (Civil Division): The appeal was dismissed as entirely academic: [2018] EWCA Civ 3049.
• Canterbury Combined Court Centre: HHJ Glenn Brasse directed on 5 June 2018 that C should be separately represented, refused to adjourn the care proceedings, and subsequently made final care orders. King LJ refused a stay pending appeal on 6 June 2018.