Mabon v Mabon
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE LATHAM,LORD JUSTICE WALL |
| Judgment Date | 26 May 2005 |
| Neutral Citation | [2005] EWCA Civ 634 |
| Docket Number | Case No: B4/2005/0558 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 May 2005 |
[2005] EWCA Civ 634
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SALISBURY COUNTY COURT
HIS HONOUR JUDGE DIXON
Sb03p00109
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Latham and
Lord Justice Wall
Case No: B4/2005/0558
Mr M Everall QC & Mr A Skinner (instructed by Messrs Battens) for the Appellant
Mr S Wildblood QC & Mr D Lochrane instructed by The Family Law Centre) for the Guardian ad litem
This appeal focuses upon Rule 9.2A of the Family Proceedings Rules 1991.
Rule 9.5 provides for the separate representation of children. Rule 9.5(1) states: —
"Without prejudice to rules 2.57 and 9.2A, if in any family proceedings it appears to the court that it is in the interests of any child to be made a party to the proceedings the court may appoint– (a) an officer of the service…to be the guardian ad litem of the child with authority to take part in the proceedings on the child's behalf."
Rule 9.2A provides mechanisms whereby minors may sue without a next friend. Rule 9.2A(4) provides: —
"Where a minor has a next friend or guardian ad litem in proceedings and the minor wishes to prosecute or defend the remaining stages of the proceedings without a next friend or guardian ad litem, the minor may apply to the court for leave for that purpose and for the removal of the next friend or guardian ad litem …"
Rule 9.2A(6) provides: —
"Where the court is considering whether to
(a) …
(b) grant leave under paragraph (4) and remove a next friend or guardian ad litem,
it shall grant the leave sought and as the case may be remove the next friend or guardian ad litem if it considers that the minor concerned has sufficient understanding to participate as a party in the proceedings concerned or proposed without a next friend or guardian ad litem."
Rule 9.2A(6) has been considered by this court in the case of Re S (A Minor) (Independent Representation) (CA) [1993] 2 FLR 437. In giving the judgment of the court, Sir Thomas Bingham MR said at 444H: —
"…Different children have differing levels of understanding at the same age. And understanding is not absolute. It has to be assessed relatively to the issues in the proceedings. Where any sound judgment on these issues calls for insight and imagination which only maturity and experience can bring, both the court and the solicitor will be slow to conclude that the child's understanding is sufficient."
Later at 448E he said: —
"The 1989 Act enables and requires a judicious balance to be struck between two considerations. First is the principle, to be honoured and respected, that children are human beings in their own right with individual minds and wills, views and emotions, which should command serious attention. A child's wishes are not to be discounted or dismissed simply because he is a child. He should be free to express them and decision-makers should listen. Second is the fact that a child is, after all, a child. The reason why the law is particularly solicitous in protecting the interests of children is because they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will react and the imagination to know how others will react in certain situations, lacking the experience to measure the probable against the possible. Everything of course depends on the individual child in his actual situation. For purposes of the Act, a babe in arms and a sturdy teenager on the verge of adulthood are both children, but their positions are quite different: for one the second consideration will be dominant, for the other the first principle will come into its own. The process or growing up is, as Lord Scarman pointed out in Gillick ( [1986] AC 112 at p 186B [1986] 1 FLR 224 at p250H), a continuous one. The judge has to do his best, on the evidence before him, to assess the understanding of the individual child in the context of the proceedings in which he seeks to participate."
First instance decisions have considered three commonly encountered situations. The first is the disturbed child. In the case of Re: H (A Minor) (Care Proceedings: Child's Wishes) [1993] 1 FLR 440 I had said: —
"…Obviously a child suffering from a mental disability might not have such understanding. Obviously a child suffering from a psychiatric disorder might not have such a level of understanding. But I cannot follow her to the conclusion that if a child is only suffering from some emotional disturbance then really there is little room to question his or her ability to instruct a solicitor. It seems to me that a child must have sufficient rationality within the understanding to instruct a solicitor. It may well be that the level of emotional disturbance is such as to remove the necessary degree of rationality that leads to coherent and consistent instruction."
In the case of Re: H (A Minor) (Role of Official Solicitor) [1993] 2 FLR 552 Booth J dealt with the child whose views were influenced or manipulated by adult family members. She said: —
"The test as to whether a particular child has sufficient understanding to participate as a party in proceedings must, in my judgment, be considered in the light of all the circumstances of the case and in the light of what has already happened as well as what is likely to happen in the course of the proceedings in the future. In this case, while the evidence points to a strong influence by Mr R and his family and associates upon H's views, it is impossible, as I judge it on the evidence before me, to find that the views that H presently holds are not his own to such an extent that he is not able to present them as his case. Adopting the words of Thorpe J in Re H (A Minor)(Care Proceedings: Child's Wishes) [1993]1 FLR 440:
'Has that influence, I ask been so intense as to destroy the capacity to give coherent and consistent instructions.'"
The seeming quotation from my judgment in the above passage is not in fact a quotation. My Lord, Latham LJ, pointed out that the word 'adopting' was clearly a misprint for 'adapting'.
In Re: C (Residence: Child's Application for Leave) [1995] 1FLR 927 Stuart-White J brought into account the factor of litigation disturbance. He said at 930G: —
"First of all, it is pointed out that there are certain aspects of the statement submitted by the applicant which show a degree of lack of objectivity and a lack of insight. I have considered that statement and whilst, as I say, there is a degree of force in that submission, nevertheless, I have to ask myself whether such lack of objectivity and lack of insight as is manifest in that statement is a function of the youth of the applicant or is a function of the individual child or adult who distressingly finds himself or herself caught up in distressing disputes of this kind, and it is of course the experience of the courts that many adult individuals find it very difficult to be wholly objective when advancing their case in matters of this sort."
The most recent case in the reports on this question is Re: N (Contact: Minor Seeking Leave to Defend and Removal of Guardian) [2003] 1 FLR 652. It is not necessary to draw any special factor from this decision but I will return to consider its place in the overall context of the authorities.
It is against that background that I turn to the facts of the present case. The parents came together in 1986 and had six children, the fourth birth being twin-girls. They separated in June 2003, the mother leaving with the three youngest children, the father remaining in the matrimonial home with the three eldest.
On the 12 th November 2003 the mother applied for residence orders. On the 1 st April 2004 the CAFCAS officer, Mr Barclay, filed his first report. However on the 20 th April Mr Barclay was appointed Guardian of all six children and on the 5 th May the six children were joined as parties to the action to be represented by their guardian. On that date the judge, His Honour Judge Dixon, was giving directions for a fact finding hearing to commence on 6 th July 2004 with a four day time estimate.
Unfortunately, even though the judge limited his inquiry to establish what had happened on a single day, namely 18 th April 2003, the trial escalated into ten court days, spread over five months and culminating in a judgment of the 23 rd December 2004.
After the July break the hearing was to resume on the 1 st September. On the 12 th August the three eldest boys attended the offices of Messrs Battens and sought to instruct them to represent them at the resumed hearing. The solicitors acting for the guardian were entirely co-operative and on the 23 rd August the public funding certificate in relation to the three eldest boys was transferred to Messrs Battens. The application under rule 9.2A(4) was issued on the 24 th August and was considered by the judge on the 1 st September. Mr Skinner appeared for the boys but failed to persuade the judge to grant his application. The judge indicated that Mr Skinner might renew his application at the conclusion of the fact finding trial. Mr Skinner and his clients accepted that decision, recognising that a valid distinction could be drawn between the trial of disputed acts of misconduct on the part of the parents and a subsequent and separate hearing for disposal.
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