C (Child: Ability to Instruct Solicitor)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice Elisabeth Laing,Lord Justice William Davis |
| Judgment Date | 26 July 2023 |
| Neutral Citation | [2023] EWCA Civ 889 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
| Docket Number | Case No: CA-2023-000998 |
[2023] EWCA Civ 889
Lord Justice Peter Jackson
Lady Justice Elisabeth Laing
and
Lord Justice William Davis
Case No: CA-2023-000998
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT BARNET
Her Honour Judge McKinnell
ZW22C50147
Royal Courts of Justice
Strand, London, WC2A 2LL
Joy Brereton KC and Frankie Shama (instructed by Dawson Conwell LLP) for the Appellant Mother
Rebecca Davies (instructed by the local authority) for the Respondent Local Authority
The Respondent Father appeared in person
Shiva Ancliffe KC and Gill Honeyman (instructed by Covent Garden Family Law) for the Respondent Children by their Children's Guardian
Hearing date: 5 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 26 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal arises from an order allowing A, a 14-year-old boy, to instruct his own solicitor in proceedings brought by his parents to discharge care orders in respect of A and his sister B, who is 13. The care orders were made to protect the children from parental conflict and from behaviour by their father that had severely alienated them from their mother. The appeal raises issues about the ability of children to instruct a solicitor directly and about meetings between children and judges.
The background is that the parents married in 2006 and separated in January 2019 before divorcing. Communications further deteriorated after the separation and private law proceedings began, eventually involving the mother obtaining a non-molestation order in early 2020 and reducing the father's contact. On several occasions the children ran away from their mother to their father, including for a month in March 2020, and the mother then stopped contact with their father altogether for a period. The family attended the Tavistock Clinic and an aid organisation, both of whom declined to provide therapy because of concerns about the children's safety. Concern was also felt about their presentation at school and the deteriorating relationship with their mother, including reports of violence by A towards her and B.
The care proceedings
The local authority became involved in early 2020 and in July 2020 it issued care proceedings. Contact with the father resumed under supervision. Expert psychiatric advice was sought from Dr Malcolm Bourne. In a report in December 2020, he stated:
“I do take a clear view that the father is being very damaging to the children's emotional health. If the mother's description of the father as controlling during their marriage is correct, then the children would have been damaged by being exposed to that. More generally, though, his own need for his children to idolise him and disparage their mother, overwhelms A's and B's needs. A in particular presented to us, and other professionals share this experience, of someone who talks in very much an over-adult fashion, overtly or unconsciously parroting his father's beliefs and words.”
A was then aged 12.
Unfortunately, the proceedings could not be swiftly determined, and in October 2021 the local authority reached the view that continued placement at home was untenable. With the support of Dr Bourne and the guardian, an interim care order was made in November 2021 and the children were placed in separate foster placements. They have remained in foster care since then.
Dr Bourne was next asked to assess whether A, whose views fundamentally differed from the guardian, was competent to instruct his own solicitors. After a full interview with A in November 2021, his report included this advice:
“Whereas I acknowledge and agree that there is bound to be some degree of influence over a child by a parent, I also believe that in this situation, the degree of influence over A by his father is extreme and damaging. The papers that I have read describe the potential for the child to be ‘parroting’ a parent's beliefs/words, and to act as their mouthpiece. In my opinion, this situation is more insidious and far-reaching than that as A has absorbed a belief system of his father's; it is most damagingly connected with his mother, whom he describes above as having a ‘great hatred’ of.
…
I think that A understands well enough the ‘facts’ of the process of litigation including the function of the lawyer, judge and Guardian and his role with those. I do not believe that A has a good appreciation of the potential consequences of his involvement in litigation. He essentially saw no risk of difficulty or emotional harm from hearing about, for example, his family members, in the court environment, or reading about them — he said he had asked for my report, for instance.
Whereas I appreciate that instructing his own solicitor would not necessarily mean he would have unfettered access to reports and papers, his lack of such understanding is of concern in the key issue for this report.
…
In conclusion then, I would say that the majority of the areas under consideration outlined above lead to a view that A is not competent to instruct his own solicitor. The main arguments ‘for’ his doing so are his overall intelligence and his strength of feelings about this. However, I would say that his strength of feeling is at least in part based on false beliefs or premises. So although there is something of a balanced answer, I would say that the overall answer is that A is very probably not competent to instruct his own solicitor, on around a 90:10 balance.”
The final hearing in the care proceedings took place before Her Honour Judge McKinnell in November and December 2021, when she heard nine days of evidence. This included evidence from Dr Bourne and psychological assessments of the children by Melanie Gill. The children's solicitor, Angela Gaff, took instructions from the guardian, who supported the local authority's application, with their wishes and feelings being conveyed to the court by the guardian and by Ms Gaff. On 14 January 2022, the judge handed down her judgment and made care orders on the basis of care plans for both children to remain in foster care, with individual therapy for the children, for each parent and with family therapy. There was to be sibling contact. A non-molestation order forbade the father from contacting the children for three months to give them the chance to engage with therapy. Rehabilitation to the mother's care was not expressly part of the care plan but was regarded as a goal, or at least a possibility.
In the course of a substantial judgment, the judge found that the parents' relationship had been abusive and argumentative and had been since A was born. She also found that the father had alienated the children from the mother by referring to her in derogatory terms, accusing her of lying to them and abusing them, encouraging them to act secretively, exerting influence over them to provoke them to misbehave and abscond from home, and causing A in particular to write to professionals in line with the father's wishes. She found that the threshold criteria were met in that the children were at continued risk of emotional harm due to being exposed to conflict between their parents, and that they were beyond parental control, A having threatened the mother repeatedly and both children having assaulted her on more than one occasion with increasing severity.
The following findings from the 2021 judgment are directly relevant to the present appeal:
“10. Dr Bourne assessed both A's and B's capacity to instruct solicitors and concluded that neither of them has capacity. The children's wishes and feelings have been made clear to me in their correspondence, diary entries and by both the Guardian and Ms Gaff.
…
12. …The experts are in no doubt whatsoever that the children are parroting the father's beliefs and words. Having considered all the evidence, I entirely agree with them. It is clear and obvious. The language and phrases used by the children clearly comes from the father. They have either overhead him saying those things or he has spoken to them, using those words and phrases or he has told them what to say and write. The language, phrases and words do not all come from 11 and 13 year old children.
…
14. … The father… was, and remains, unable to separate his own needs from those of his children. He was, and remains, unable to see the significant harm his behaviour has had, and continues to have, on his children. That needs to change. The father will only be able to bring about change through acceptance of this judgment and long term therapy. The children's welfare is the Court's paramount consideration. The children come first. The father's insight has been, and remains, extremely poor.
15. … I make it clear that the mother and the father must not show the children a copy of this judgment or share its contents with them until the LA (in consultation with the therapists) consider it appropriate. The children, particularly A, already know far too much about these proceedings and far more than it is healthy for them to know. It is clear to me that the father is responsible for most of the children's difficulties, their broken relationship with the mother and the psychological harm they have suffered and continue to suffer. The father does not agree. He blames the mother, the social worker and the Court. He is pitted against everyone and he has drawn the children into his feeling and belief that it is him and the children against the rest of the world. He is unable to see the harm he is causing to the children and how distorted his view is.
…
20. … It is by no means clear to me that the father will properly engage with the recommended therapy. He has no insight whatsoever into the difficulties and harm he has...
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