Re C (Child: Ability to Instruct Solicitor)

Under rule 16.29 of the Family Procedure Rules 2010, the question is whether this child has sufficient understanding to instruct a solicitor in the particular circumstances. It requires a practical and broad assessment of all relevant evidence. It is not a welfare balancing exercise or a theoretical choice between protection and autonomy.

A child meeting a judge is for the child’s benefit and is not an evidence-gathering exercise. The meeting may illuminate existing evidence, but a judge must not use personal impressions from it as a substitute for proper assessment. If evidentially significant material arises, the parties must be informed and given an opportunity to respond. A judge who rejects clear expert evidence must give sustainable reasons.

Care orders had been made in respect of A and his sister after findings that their father had severely alienated them from their mother and exposed them to harmful adult conflict. In the ensuing applications by the parents to discharge the care orders, A, then nearly 15, sought separate representation because his wishes conflicted with those advanced by his guardian.

A psychiatrist repeatedly advised that A lacked the independence of thought and emotional maturity needed to instruct a solicitor. Following a lengthy meeting with A, the Family Court nevertheless held that he had sufficient understanding and permitted him to instruct his own solicitor. The mother appealed, supported by the local authority. The central issue was whether that decision was wrong, particularly because it relied on the judge’s impressions from the meeting and departed from the expert evidence.

1. Appeal allowed. The order permitting A to instruct his own solicitor was discharged.

2. The governing question under rule 16.29 of the Family Procedure Rules 2010 was whether A had the ability, having regard to his understanding, to instruct a solicitor in the circumstances of this case. The assessment is practical, broad and case-specific. It must take account of relevant evidence about matters such as age, intelligence, emotional maturity, psychological state and influence. It is not driven by welfare factors or by an abstract comparison between autonomy and protection: Re W [2016] EWCA Civ 1051.

3. The judge’s meeting with A could not properly become the basis for an assessment of his competence. Such meetings are for the child’s benefit and not for gathering or testing evidence. Although a meeting may illuminate existing evidence, the judge’s personal assessment went beyond that permissible role and was central to the decision. The parties were not expressly told that this assessment would be relied upon, depriving them of an opportunity to address it. That was procedurally unfair: Re KP [2014] EWCA Civ 554 and Re AH [2021] EWCA Civ 1768.

4. The judge’s interpretation of A’s response to the sandstorm analogy was unsustainable. Rather than demonstrating insight, it showed his continuing lack of insight into the family’s difficulties and his rejection of the court’s earlier findings. The judge also preferred her view that A was mature and held his own views to the consistent psychiatric evidence that he was emotionally immature and had absorbed his father’s damaging belief system. She gave no adequate reason for rejecting the expert evidence, particularly after having fully accepted it in the earlier care proceedings: Re B [1996] 1 FLR 667; Re D [2010] EWCA Civ 1000.

5. This was an exceptional case of severe and continuing alienation. A’s understanding had not objectively improved since the care orders; the father’s conduct continued, A had withdrawn from therapy, and his complaint against professionals reflected the same distorted narrative. The caution in Re W against too readily treating a child as a parent’s mouthpiece did not govern these distinctive facts. A lacked sufficient understanding to instruct directly. The original judge could continue to conduct the discharge proceedings.

• Court of Appeal (Civil Division): The mother’s appeal was allowed and the order permitting A to instruct his own solicitor was discharged: [2023] EWCA Civ 889.
• Family Court at Barnet: On 24 May 2023, Her Honour Judge McKinnell allowed A, then nearly 15, to instruct his own solicitor. The relevant order was stayed pending the appeal.