CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child's Understanding)

An appeal is ordinarily a continuation or further stage of the proceedings at first instance. Where a child already has a children’s Guardian, the child must obtain the court’s permission to conduct the appeal without that Guardian under FPR 16.6(5) and (6).

The court is the ultimate arbiter of whether the child has sufficient understanding to conduct the proceedings. The assessment is individual and fact-sensitive. It concerns the child’s understanding and intelligence in relation to the particular proceedings, rather than age alone. Relevant matters include intelligence, emotional maturity, influence, understanding of the issues and litigation process, the child’s reasons for participation, and the competing risks of direct participation and exclusion.

The child appealed, or sought to appeal, against an order of His Honour Judge Meston QC dated 6 November 2018 refusing the mother’s application to vary the child-arrangements order. The child was already a party to the family proceedings and had a children’s Guardian and solicitor.

A solicitor instructed by the child considered her competent to act directly. The Guardian and the solicitor appointed under the existing order disagreed. The preliminary issues were whether the appeal constituted fresh proceedings or a continuation of the existing proceedings, and whether the child had sufficient understanding to conduct the appeal without a Guardian.

1. Appeal proceedings. An appeal is another stage in the proceedings begun at first instance. The continuity of party status, the appeal court’s powers over the original order, the review function under FPR 30.12, and the absence of any requirement to reconsider a child’s party status all supported that conclusion. Administrative matters such as a separate case number, appellant’s notice, costs and legal-aid arrangements did not alter the substance of the proceedings.
2. Role of the court. Although FPR 16.6(3)(b) permits a solicitor initially to decide whether the child can give instructions having regard to the child’s understanding, the court retains the ultimate power to determine whether the child requires a Guardian. The reasoning in Re CT (A Minor) (Wardship: Representation) was a powerful guide to the interpretation of the current rule.
3. Applicable test. “Understanding”, “sufficient understanding”, competence and capacity refer to the same substantive evaluation in this context. The central question is whether the child has sufficient understanding and intelligence to give instructions or conduct the particular proceedings. The assessment is relative to the issues and process involved, and must respect the child’s autonomy.
4. Relevant factors. The court should consider intelligence; emotional maturity; emotional, psychological, psychiatric or physical factors; reasons and strength of feeling; authenticity of the child’s views and possible influence; understanding of the issues, legal process, roles of solicitor and judge, and consequences of participation; and the balance between harm from participation and harm from exclusion. The assessment should usually be swift and pragmatic, although expert evidence may be required in a difficult case.
5. Application. The child was intelligent but lacked sufficient emotional maturity and understanding of the litigation and appeal process. Her views were materially affected by emotional enmeshment with her mother, and continued litigation risked harm. Those factors substantially outweighed the matters supporting direct participation. The application under FPR 16.6(5) was refused. The child could not pursue the appeal without the Guardian, who remained appointed. The solicitor was therefore to act on the Guardian’s instructions under FPR 16.29(1).

• High Court (Family Division): determined the preliminary issue arising from the proposed appeal against the order of His Honour Judge Meston QC dated 6 November 2018. The child was held unable to conduct the appeal without a children’s Guardian.
• Court of Appeal: a proposed appeal against an earlier directions order was dismissed by Lord Justice Baker on 5 February 2019 as misconceived and totally without merit.