CS v SBH
| Jurisdiction | England & Wales |
| Judge | WILLIAMS J |
| Judgment Date | 18 March 2019 |
| Neutral Citation | [2019] EWHC 634 (Fam) |
| Court | Family Division |
Practice and procedure – Children arrangements – Representation of child – Appointment of child’s solicitor – Child’s competence to instruct – Correct approach – Whether appeal new proceedings.
In child arrangements proceedings concerning a child born in 2006, a number of judgments and an expert report took the view that the child’s wishes were so enmeshed with those of the mother that they were not in effect independent of the mother. A guardian appointed for the child instructed a well-known child law solicitor (the first solicitor). In January 2017, the judge made an order for the child to live with the father and spend time with the mother.
In April 2018, the mother applied for a variation of the order. Shortly afterwards, a dispute arose over which solicitor should be appointed by the child’s guardian. On 11 May 2018, the child was taken by her maternal grandparents to see another well-known child law solicitor. This solicitor (the second solicitor) assessed the child as being competent to instruct her, and wrote to the court asking that she be appointed as the child’s solicitor, albeit with a guardian in place. The guardian, however, re-appointed the first solicitor. The judge refused an application by the second solicitor for revocation of the appointment of the first solicitor and for her own instruction. No appeal was lodged on the child’s behalf.
The first solicitor met the child in October 2018 and concluded that the child was not competent to instruct her. At the end of January 2019 the first solicitor received an email purporting to come from the child, stating that the child did not want the first solicitor to act for the child and that the child would instead like the second solicitor and another named solicitor to act for her; the email said that the child had tried to tell the first solicitor this before. That email was copied to the mother and the maternal grandmother.
The child’s wishes were clearly to live with the mother. The guardian filed a report for the final hearing, recommending that the child live with the mother, provided the mother was able to satisfy the court that the child’s relationship with the father would be maintained. The child wrote a letter to the judge and another letter to the father, both of which stated clearly that her views were her own. The judge met with the child, recording that he found her to be ‘a pleasant polite and quiet child who I thought was (perhaps) a little young for her age’. Notwithstanding the guardian’s report, the judge refused the mother’s application, on the basis that the mother had not yet shown sufficient evidence of change in her thinking about the father and that there was still a significant risk that she would alienate the child from the father.
At this point, the child spoke to the second solicitor, who explained to the child that she was going on sick leave and could not undertake any work for her while she was away. She told the child that the child could write to the court herself and also provided a list of other solicitors who might be able to assist. The child wrote to the President, saying that she wanted to appeal the judge’s decision, focusing on the fact that the first solicitor had concluded that she was not competent to instruct a solicitor ‘which is not what she would have said if she was representing me properly I have spoken to [the second solicitor] and she has given me her permission to appeal’.
In January 2019 the father sought an injunction against the mother not to disclose papers to legal representatives seeking to act on behalf of the child in relation to permission to apply for a German passport for the child, and permission to arrange psychotherapy for the child. A third solicitor attended the hearing on behalf of the child, at the mother’s request. At some stage he had had a 10-minute telephone conversation with the child. The judge made an order that no arrangement should be made for the child to consult a solicitor without prior notice being given to the first solicitor and an order preventing the disclosure of papers in the case to any other legal representative and confirmed that until further order or discharge of the public funding certificate for the child she would continue to be represented by the first solicitor and the guardian.
An appellant’s notice dated 15 January 2019 identified the child as the appellant and was signed by the third solicitor, who identified himself as the appellant’s solicitor. The third solicitor appeared to have been put in funds by the mother and the issue fee in respect of the appeal appeared to have been paid by the mother. The document prepared by the third solicitor identified factors which ‘suggest to me that this court should please enable me to see her’. The court gave directions on the appeal, including a requirement that the solicitors seeking to appeal file with the court a signed statement addressing the matters set out in FPR 16.6(3)(i) and (ii), identifying what application they were making to the appeal court in respect of the representation of the child. Rather than complying with that direction, the third solicitor filed an appeal with the Court of Appeal against that order, which was dismissed as misconceived and totally without merit. On 13 February 2019 at a directions hearing the third solicitor appeared, apparently acting as agent for the second solicitor, who had now returned from sick leave.
Both the first and the second solicitors filed statements as directed. The first solicitor filed a detailed statement setting out her involvement with the child and exhibiting various documents including email communications from the child and the guardians report. She made it clear that she did not consider that the child was competent to instruct her own solicitor within either the original proceedings or any appeal proceedings. The second solicitor’s statement addressed the issue of the competence of the child as at May 2018 when she had seen her. It was implicit in her statement that her view had not altered but she did not address the issue of whether the child was competent to instruct her on the appeal as opposed to instruct her in respect of the issue of child arrangements. She told the court that she had not seen or spoken to the child recently, as her understanding was that she was not able to do so as a result of the existing court orders, although the court had made it clear to the third solicitor that this was not its interpretation of the orders in place.
Two questions emerged at the hearing: (i) whether an appeal constituted new proceedings, such that the provisions of FPR 16.6(3) applied, in which case the second solicitor’s opinion as to whether the child was able, having regard to her understanding, to give instructions in relation to the appeal, appeared to be determinative; (ii) if the appeal was part of a continuation of proceedings, whether, pursuant to FPR 16.6(5) and (6), the court considered that the child had sufficient understanding to conduct the appeal concerned without a guardian.
Held – (1) Although there were factors pointing towards an appeal being separate proceedings, the factors pointing in favour of an appeal being a continuation of proceedings were far more compelling. In particular, the seamless continuation of party status and the powers of the appeal court all pointed to an appeal being another stage of proceedings, albeit different in nature. The use of an appellant’s notice, rather than a C2, did not shed much light on the issue. Applications in existing proceedings could also be made by the use of other forms under the Pt 18 procedure. The appellant’s notice and the giving of a separate case number were administrative matters which did not affect the substance of the proceedings. The rules relating to the availability of legal aid did not shed much light on whether the proceedings were separate or part of a continuum either. The appeal was a continuation of the first instance proceedings, another step or stage in those proceedings, and thus the provisions of FPR 16.6(5) applied. That being so it was for the court to decide whether the child had sufficient understanding to conduct the appeal proceedings without a guardian (see [47]–[49], below).
(2) Applying Re W (representation of child) [2017] 2 FLR 199, with regard to a child having sufficient understanding, there had been a shift away from a paternalistic approach in favour of an approach which gave significantly more weight to the autonomy of the child. In determining whether the child had sufficient understanding to give instructions to pursue an appeal and to conduct the appeal the court needed to consider a range of factors including: (i) the child’s level of intelligence; (ii) the child’s emotional maturity; (iii) factors which might undermine their understanding, such as issues arising from their emotional, psychological, psychiatric or emotional state; (iv) the child’s 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; (v) the child’s understanding of the issues in the case and their desired outcome, with any matter which shed light on the extent to which these were authentically their own or were mere parroting of one parent’s position. Some degree of influence was a natural component of decision-making but the closer to the ‘parroting’ end of the spectrum, the lower the level of understanding there was likely to be. An unwise decision did not mean the child did not understand, although it would no doubt depend on the extent to which the child’s view diverged from an objectively reasonable or wise decision; (vi) the child’s understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play, the law that was applied and some of the consequences of involvement in litigation. Care should be taken...
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AK v A London Borough Council
...Mr Day relied in particular on the judgment of Williams J in Re CS (Appeal FPR 2010, Rule 16.6: Sufficiency of Child's Understanding) [2019] EWHC 634 (Fam) in which the judge set out an extensive analysis of the factors to be considered by the court when determining whether a child has suff......