In care proceedings children are represented by a solicitor and a guardian – this is called the ‘tandem model’ of representation. The solicitor may also instruct a barrister for certain court hearings. The child’s solicitor takes instructions from the guardian about what to do in the child’s best interests, unless the child can show that he/she has enough understanding to give their own instructions. This post considers various options open to the child who wants to directly express their wishes and feelings.
I don’t agree with what my guardian is saying and I want my own solicitors
If the child has a good enough understanding of what the proceedings are all about, s/he can chose to be represented by their own solicitor. The guardian should be alert to the possibility that an older child may not agree with the guardian’s recommendations, and that the child may want to give instructions directly to the solicitor.
- Representation of children in proceedings is dealt with by Part 16 of the Family Procedure Rules.
- The key test about deciding if a child has ‘sufficient understanding’ remains Gillick v West Norfolk and Wisbech Area Health Authority  UKHL 7;  AC 112, which is discussed in the case of CS v SBH, link below.
- For a case where the Judge decided a 14 year old child was able to instruct his own solicitor, see Z (A Child – Care Proceedings – Separate Representation)  EWFC B57 (29 June 2018)
- A child can also write a letter to the judge or ask to speak to the judge directly – see discussion below.
There is a useful case from the Court of Appeal W (A Child)  EWCA Civ 1051 which discusses the relevant test to see if a child is capable of instructing their own solicitors. The Court of Appeal decided that the Judge at first instance had been wrong not to allow a 16 year old girl to have the solicitor of her choice; there was a confusion over issues of ‘welfare’ and ‘understanding’.
The Court of Appeal agreed the relevant rule of the FPR to be applied was Rule 16.29 which sets out that when a solicitor is appointed for the child, the solicitor must represent the child in accordance with the instructions received from the guardian. If the solicitor thinks that the child wants to give instructions which will conflict with those received from the guardian and that the child is mature and understands enough to give his/her own instructions, the solicitor MUST conduct proceedings in accordance with the child’s instructions (rule 16.29 (2))
If the child wants to terminate the appointment of their solicitors, the child may apply to the court and the Judge will consider this application and the solicitor and the guardian will have a chance to have their say (rule 16.29 (7)).
See further the decision in CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding)  EWHC 634 (Fam) (18 March 2019) which considered how the FPR may differ depending on whether or not there was a new set of proceedings or that the child wished to instruct new solicitors within existing proceedings. The court set out at para 64 of the judgment the factors to consider about whether or not a child was able to instruct solicitors in an appeal:
- The level of intelligence of the child
- The emotional maturity of the child.
- Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state.
- Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role.
- Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position…. An unwise decision does not mean the child does not understand although it will no doubt depend on the extent to which the child’s view diverges from an objectively reasonable or wise decision.
- Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. Care should be taken not to impose too high a level of understanding in this regard; many adults with capacity would not and we should not expect it from children. An ability to understand that their solicitor put their case but also has duties of honesty to the court, an ability to understand that the judge makes a decision based on an overall evaluation of the best interests of the child which balances many competing factors; the ability to understand that they might attend court, could give and evidence, could read documents; the ability to recognise the stress of exposure to the court process and the arguments between others. The presence of all of these would be powerful signs of a high level of understanding. Conversely the absence of them or evidence of a distorted understanding would be contra-indicators.
- The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm.
I want to talk directly to the Judge
There is a very helpful article here from Family Law Week which discusses how Judges have become more willing recently to meet children and talk to them. However, the Judge must not use this meeting to collect evidence from the child, or test the existing evidence, because that that has to be done in court with everyone present. But this meeting will allow a child to tell the Judge what he or she wants and will allow the Judge to explain what the court does.
Such a meeting between Judge and child is not intended to undermine or displace the work of the guardian, but it is hoped that such meetings could help the child understand what is going on and feel reassured that people are listening.
Obviously, for very young children this could simply be overwhelming and not very helpful but it will be a matter for the individual Judge in each case whether he or she thinks meeting the child is the right thing to do.
Familly Justice Council Guidelines
In April 2010 the Family Justice Council published guidelines for Judges who want to speak to children. The purpose of the guidelines is:
… to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge’s task.
What happens when meeting the Judge goes wrong?
For an example of the problems that can arise if a Judge doesn’t follow the guidelines, see the case of KP in 2014. Although this was a case involving the Hague Convention, (a dispute between separated parents who wanted the child to live in another country) the points raised apply to any situation when a Judge speaks directly to a child:
Despite having great respect for this judge, who is highly experienced in the conduct of proceedings where the voice of the child needs to be heard, our conclusion is that on this occasion the conduct of the judicial interview did indeed fall on the wrong side of the line. Having summarised the submissions of Mr Turner and Mr Gupta, with which we agree, we can set out the reasons supporting this conclusion in short terms as follows:
i) During that part of any meeting between a young person and a judge in which the judge is listening to the child’s point of view and hearing what they have to say, the judge’s role should be largely that of a passive recipient of whatever communication the young person wishes to transmit.
ii) The purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say. The meeting is primarily for the benefit of the child, rather than for the benefit of the forensic process by providing additional evidence to the judge. As the Guidelines state, the task of gathering evidence is for the specialist CAFCASS officers who have, as Mr Gupta submits, developed an expertise in this field.
iii) A meeting, such as in the present case, taking place prior to the judge deciding upon the central issues should be for the dual purposes of allowing the judge to hear what the young person may wish to volunteer and for the young person to hear the judge explain the nature of the court process. Whilst not wishing to be prescriptive, and whilst acknowledging that the encounter will proceed at the pace of the child, which will vary from case to case, it is difficult to envisage circumstances in which such a meeting would last for more than 20 minutes or so.
iv) If the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.
v) The process adopted by the judge in the present case, in which she sought to ‘probe’ K’s wishes and feelings, and did so over the course of more than an hour by asking some 87 questions went well beyond the passive role that we have described and, despite the judge’s careful self-direction, strayed significantly over the line and into the process of gathering evidence (upon which the judge then relied in coming to her decision).
vi) In the same manner, the judge was in error in regarding the meeting as being an opportunity for K to make representations or submissions to the judge. The purpose of any judicial meeting is not for the young person to argue their case; it is simply, but importantly, to provide an opportunity for the young person to state whatever it is that they wish to state directly to the judge who is going to decide an important issue in their lives.
I want to give evidence in court
The courts used to be reluctant to agree that children should give evidence in court, but there has been a shift in attitude more recently as we see with the decision of the Supreme Court in re W  UKSC.
When deciding whether or not a child should come to court and give evidence, the essential test is whether justice can be done without further questioning of the child. To answer this question, the court looks at two issues:
- The advantages that the child giving evidence will bring to the determination of the truth.
- The damage giving evidence may do to the welfare of this or any other child.
The following factors will help the court to weigh up these two issues.
The fair and accurate determination of the truth
- The issues it is necessary for the court to decide;
- The quality of the evidence already available, including whether there is enough evidence to make the findings without the child being cross examined;
- Whether there is anything useful to be gained by oral evidence in circumstances where the child has not made concrete allegations;
- The quality of any ABE interview and the nature of the challenge; the court will not be helped by generalised accusations of lying or a fishing expedition. Focused questions putting forward an alternative explanation for certain events may help the court to do justice;
- Age and maturity of the child and the length of time since the events.
Risk of harm to the child
- Age and maturity of the child and the length of time since the events;
- The child’s wishes and feelings about giving evidence. An unwilling child should rarely if ever be obliged to give evidence and, where there are parallel criminal proceedings, the child having to give evidence twice may increase the risk of harm;
- The level of support the child has and the views of the Guardian and those with parental responsibility;
- The fact that the family court has to give less weight to the evidence of a child who is not called may be damaging to the child;
- The court is entitled to have regard to the general understanding of the harm that giving evidence may do to a child as well as features peculiar to the child and case under consideration. The risk, and therefore weight, will vary from case to case.
The Family Justice Council issued guidance on children giving evidence in 2012.
For an interesting case where Judges in Court of Appeal disagreed with each other about how the Re W principles had been applied, see S (Children)  EWCA Civ 83 (09 February 2016)
In the case of R (Children)  EWCA Civ 167 a 14 year old was successful in her appeal against the court refusing to let her give evidence in support of her father, saying he had not abused her. Briggs LJ commented at para 36:
To my mind it is the absence of any real recognition of the basic importance of the cross-examination of GR to a fair trial of the serious issues in this case, in the judge’s judgment or even in the respondents’ submissions on this appeal, that makes it necessary that the appeal should be allowed. I would regard the welfare implications of the choice whether to permit her to give oral evidence and to be cross-examined as being evenly balanced. The risk of harm which the process may cause to this bright and articulate fourteen year old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her.
I want to tell my story to the press
In 2003 Munby j (as he then was) heard the case of Angela Roddy. She was 16 years old and she wanted to tell her story to the press about becoming pregnant at 13 and then having her baby taken into care. She was allowed to be interviewed but the identities of her baby (Y) and Y’s father (X) would remain confidential.
Munby J commented at para 56 of the judgment:
56.The courts must face reality. We must, as Lord Scarman said, be sensitive to human development and social change. Angela may not yet be quite 17 years old but she is a young woman with a mind of her own and, as her solicitor B has said, a mature and articulate young person. We no longer treat our 17-year-old daughters as our Victorian ancestors did, and if we try to do so it is at our — and their — peril. Angela, in my judgment, is of an age, and has sufficient understanding and maturity, to decide for herself whether that which is private, personal and intimate should remain private or whether it should be shared with the whole world. She is what Ward LJ described in In re Z (A Minor) (Identification: Restrictions on Publication)  Fam 1 at p 30 as a “competent teenager taking [her] story to the press”. She is, to use the language of Woolf J (as he then was) in Gillick v West Norfolk and Wisbech Area Health Authority  QB 581 at p 596, “capable of making a reasonable assessment of the advantages and disadvantages” of what is proposed.
57.In my judgment (and I wish to emphasise this) it is the responsibility — it is the duty — of the court not merely to recognise but, as Nolan LJ said, to defend what, if I may respectfully say so, he correctly described as the right of the child who has sufficient understanding to make an informed decision, to make his or her own choice. This is not mere pragmatism, although as Nolan LJ pointed out, any other approach is likely to be both futile and counter-productive. It is also, as he said, a matter of principle. For, as Balcombe LJ recognised, the court must recognise the child’s integrity as a human being. And we do not recognise Angela’s dignity and integrity as a human being — we do not respect her rights under Articles 8 and 10 — unless we acknowledge that it is for her to make her own choice, and not for her parents or a judge or any other public authority to seek to make the choice on her behalf.
In July 2014 Simon Hughes announced at the Voice of the Child Conference the government’s proposals to permit all children over the age of 10 an opportunity to speak directly to the Judge. He said:
Children and young people must by law have their views heard before decisions are made about their future, and where decisions are made that will impact them. At the moment, it is still too often that their views are not heard. Or that the law is interpreted to mean that others can make a assumption about the view of the child or young person – often for the best of intentions and acting in their interest, but nevertheless with the outcome that the child or young person does not feel that their own distinct voice was heard.
I therefore want to announce that it is the intention of the Ministry of Justice, and therefore the government, that we move as soon as is practical to apply in all our family justice proceedings in England and Wales where children and young people are concerned the policy that it will be the normal practice, the norm, that, from the age of 10, children and young people involved in public or private law family justice proceedings before the courts will have access to the judge, in an appropriate way which reflects their feelings and wishes to make clear their views as to what is the best resolution of the family dispute in their interest.
Children and young people of 10 and over will therefore be given the chance to make clear their views in person or if preferred in another way. We will also work with the mediation sector to arrive at a position where children and young people of 10 years old and over have appropriate access to mediators too in cases which affect them.
The Minister also agreed with the following:
Children and young people should be given the opportunity to meet and communicate with the professionals involved with their case including workers from the Children and Family Court Advisory and Support Service ( CAFCASS), social workers, the judges and legal representatives; every child of sufficient age and ability should have the opportunity of meeting with the judge overseeing their case; every child should have the opportunity through Cafcass of submitting their views directly to the judge in writing; all children should be able to communicate their wishes and feelings to the judge; children and young people should be kept informed about the court proceedings in an age appropriate manner, kept informed of the stage their case has reached, and contacted prior to the first hearing, and have the opportunity of giving feedback through email, text, telephone or written form.
EDIT However, as of the time of writing this edit (Nov 2015) nothing further has been heard of these reforms and it is likely they have been kicked into the long grass.
FURTHER EDIT in 2018 it was confirmed that there had been no movement on these reform proposals and it is likely they will be shelved.
- The Final Report of the Vulnerable Witnesses and Children Working Group published in March 2015.
- An article by David Burrows, examining the status of evidence from children and other vulnerable parties in July 2014.
- See para 91 onwards of this judgment about how the views of elder siblings were not before the court when it was considering the adoption of the youngest sibling. The Judge was not happy about this situation.
- See what children said to the Children’s Commissioner in 2010 about opening up the family courts.
- Here is a useful article about involving children in family proceedings – how and why
- Paul Magrath of The Transparency Project considers the case of CS  and the issue of a child’s competence to instruct her own lawyer.