Guest post by David Burrows

Child’s involvement in proceedings: ‘child’s perspective’

United Nations Convention on the Rights of the Child (1989) Art 12.1 requires that signatories (of which the UK is one) “shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child”; and in the process, that “the views of the child [shall be] given due weight in accordance with the age and maturity of the child”.

Art 12.2 continues: the child shall “be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body” in accordance with the country’s procedural rules. In English family proceedings the main part of the procedural rules which affect children is in Family Procedure Rules 2010 (FPR) Pt 16.

It is the rules in Pt 16 with which this article is concerned; but how is the Art 12.1 “right to express views” translated into English procedural law in Pt 16? How are the rules understood by their intended beneficiaries, namely mature or Gillick-competent children? (The term “Gillick-competent” is short-hand for a child of “intelligence and understanding” as explained in the still entirely relevant House of Lords decision in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7; [1986] 1 AC 112.)

In general terms, for family proceedings, rules (made by Family Procedure Rule Committee under Courts Act 2003, s 75) must be drafted in such a way that, by sub-s (5):

“(a) the family justice system is accessible, fair and efficient, and

(b) the rules are both simple and simply expressed.”

This applies whoever it is who is intended to read the rules; and since in this case it is a child for whom the “system [must be] accessible”, it would seem to follow that the child should find the rules, as far as possible, “simple and simply expressed”. It will be for the reader of this article to judge whether such simplicity applies with the rules as now drafted: and so the reader can judge the rules, where cited, are set out in full.

Children’s applications: reported case law

Four reported cases where children have applied to court will serve as examples:

(1)   A child wants to make her own application in her own proceedings: Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, sub nom Re T (A Minor) (Child: Representation) [1994] Fam 49, [1993] 3 WLR 602, CA;

(2)   “Sam” and the judgment in the form of a letter from Peter Jackson J in Re A (Letter to a Young Person) [2017] EWFC 48, Peter Jackson J;

(3)   A child in care wants to ask the court to discharge a care order: In re W (A Child) (Care Proceedings: Child’s Representation [2016] EWCA Civ 1051; [2017] 1 WLR 1027; [2017] 2 FLR 199 and

(4)   Ciccone v Ritchie (No 1) [2016] EWHC 608, [2016] 4 WLR 60, [2017] 1 FLR 795, MacDonald J and Madonna’s son Rocco.

These are not the daily Family Court round of children cases such as care proceedings, residence and contact (now called child arrangements) applications and adoption. They are cases where a child starts the case or makes the application in existing proceedings. The child must take the initiative; but, by definition, he or she must know of the right to set the ball rolling.

 Child making her own application 

The first examples (CT and Sam) – the child who wants to apply to court – takes the reader to Children Act 1989 (CA 1989) s 10(1) and (8) which says:

“(1) In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order [ie a child arrangements order] with respect to the child if –

(a)    an application for the order has been made by a person who – …

(ii) has obtained the leave of the court to make the application; or …

 

(8) Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.”

That means – though it may not be completely clear to the 14-year-old reader – that a child of “sufficient understanding” can apply for permission to make her own court application. For example, in Re CT  (above) “Chrissie” (not her real name) was an 11-year-old who had fallen out with her adopted family, and wanted to go back to her natural family. “Sam” was a 14-year-old who wanted to move with his father to an unnamed Scandinavian country. How is the application to be made?

The rule says (in two separate paragraphs: FPR r 16.6(1) and (3)) that a child of understanding can apply “without a children’s guardian” (the term “children’s guardian” is explained below) in proceedings under CA 1989 (r 16.6(1)) where:

“(3) … either:

(a) the child has obtained the court’s permission; or

(b) a solicitor –

(i) considers that the child is able, having regard to the child’s understanding, to give instructions in relation to the proceedings; and

(ii) has accepted instructions from that child to act for that child in the proceedings and, if the proceedings have begun, the solicitor is already acting.”

CA 1989 s 10(8) says it is the court that decides on “sufficient understanding”; but, says the Court of Appeal in Chrissie’s case (Re CT), the rule says it is the solicitor. For practical purposes it is more sensible to follow the rule and take the solicitor’s word for it, thought the Court of Appeal. This must be subject – thought Waite LJ in that case – to the court’s ability to check the solicitor’s assessment of understanding. The court takes that step if it thinks it appropriate to do so, or someone raises the question (as the adoptive parents did in Chrissie’s case and as another solicitor did in Re W, the next case).

A child who no longer wants to be in care

The next example is where a child is in care; but (say) is spending more and more time at home (which her social workers are not happy about: they feel that the parent’s influence is bad for the child). She therefore wants to ask the court to decide if she must still be in care; so, as she is entitled to do (CA 1989 s 39(1)(b)), the child can apply to the Family Court to discharge her care order. 

The Re W case shows (the child was “FW” in the case, to be called “Fiona” here) that even the Court of Appeal could get in a muddle over FPR Pt 16 (as I explain on my own blog in  Representation of children and their rights ).Black LJ (now Lady Black and an eminent children lawyer) described the rules as of “complexity”; but it is possible she did not find the correct way through the “complexity”. For example, there was probably no need in the early stages of Fiona’s case for a children’s guardian to be appointed (as was the case). Fiona could therefore have had her own solicitor. A children’s guardian was appointed by the family court judge (wrongly). The guardian appointed another solicitor. Fiona disagreed with them both; and they both questioned Fiona’s “understanding” to instruct her own solicitor. And the whole case ended up in the Court of Appeal. So what was it Black LJ found complex?

Duties of the solicitor for the child; assessment of understanding

The long-standing rule – where a children’s guardian is correctly appointed – is that a solicitor works with the guardian till the child (a) is old enough to take a different view (“instructions which conflict”) from the guardian and (b) then does take a different view. Then FPR r 16.29(2) and (3) kick in:

“(2) If a solicitor appointed as mentioned in paragraph (1) considers, having taken into account the matters referred to in paragraph (3), that the child –

(a) wishes to give instructions which conflict with those of the children’s guardian; and

(b) is able, having regard to the child’s understanding, to give such instructions on the child’s own behalf,

the solicitor must conduct the proceedings in accordance with instructions received from the child.

(3) The matters the solicitor must take into account for the purposes of paragraph (2) are –

(a) the views of the children’s guardian; and

(b) any direction given by the court to the children’s guardian concerning the part to be taken by the children’s guardian in the proceedings.”

So, where the child’s instructions conflict with the guardian’s, the solicitor acts for the child; but still she or he must take into account the views of the guardian and directions of the court (whatever, in context, that might mean). I am not sure this takes fully into account Art 12 of the Convention (which has been developed since the original version of r 16.29 was made); nor of the rights of any individual – a 14-year-old child, or any other client – to instruct their own lawyer (a point I had to consider for Chrissie/CT when I acted for her 25 years ago).

In Re W Fiona’s “understanding” was in question. Had the Court of Appeal been referred to Re CT (whether in the FLR or the ICLR version) they would have found the answer, I think. It is the solicitor who decides; with the court able to review that decision if it is queried. There is a difference of emphasis and of language between r 16.6(3)(b)(i) and r 16.29(2)(b); but I am not sure it is material to assessment of a child’s understanding in the two contexts.

Child abduction and a children’s guardian

At the time of the hearing of Rocco’s case – he was named in the report – he was just over 15. His mother (Madonna, the singer) wanted him to return to the US, his father wanted him to stay in the UK. Rocco wanted to be a party to the resulting child abduction court proceedings.

The first step is easy, as MacDonald J says: FPR r 16.2 says: “(1)  The court may make a child a party to proceedings if it considers it is in the best interests of the child to do so”; and so he did (taking account of Practice Direction 16A, para 7.2 in the process). PD16A Pt 4 (which is where para 7.2 comes from) tells the judge factors to take into account when a “children’s guardian is appointed under rule 16.4”. That is the bit MacDonald J does not go into. Rule 16.4 follows as a matter of procedural law from r 16.2; and the simplicity of r 16.2 evaporates under the fog of r 16.4 and its associated practice direction.

It is now necessary to say how the rules define “children’s guardian”; for the term has two different meanings (and these are different again from a “child’s guardian” under the Children Act 1989 s 5). These meanings are found in FPR 2010 r 2.3, but even that leads to a number of cross-references: 

(1)   The first meaning is of a Cafcass (Children and Family Court Advisory and Support Service) officer (to be found by reference to r 16.3(6) and  16.17: “an officer of the Service or  Welsh family proceedings officer”), who was the guardian in Fiona’s case;

(2)   The second is “a person appointed in accordance with r 16.4” when the provisions of Part 16 Chapter 7 apply (r 16.4(2)); and that essentially means (though it can include a Cafcass officer eg for child arrangements order proceedings) a private individual or the Official Solicitor.

Chapter 7 will rarely apply since a child will have a solicitor (when r 16.6 applies). However, as it is now drafted r 16.6 does not apply to child abduction proceedings (see the list of types of proceedings specified in r 16.6(1)). As I read it, Rocco – according to the rules – would  need a children’s guardian (per r 16.4 and Ch 7). I doubt that he did. He had a solicitor in any event; but the point is not mentioned by MacDonald J in his judgment; and the rules are not easy to follow on this point.

Understanding the rules

Even in the above short discussion, questions arise. There are bits which are not clear to me. In Re W an experienced Court of Appeal judge – now appointed to the Supreme Court – found the rule in question ‘complex’. Rules cannot be drafted in a way that is clear to every adolescent who wants to apply to the court; but surely an attempt in that direction could be made? The rule should not confuse a Court of Appeal judge.

And if rules are redrafted, then please, rule-makers, make them in line with Courts Act 2003 s 75(5): the Family Court must be “accessible” to all applicants concerned, namely, in this case, Gillick-competent children. And any new rules must please be “simple and simply expressed”.

 

David Burrows

 17 September 2017

 

David Burrows is a solicitor advocate, trainer and writer. His book Evidence in Family Proceedings was published by LexisNexis/Family Law last year.

He writes a blog at DB Family Law

@dbfamilylaw

 

Featured image, by Xavier Gallego Morell via Shutterstock, does not depict any person discussed in this article.