Re H (A Minor) (Care Proceedings)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Court | Family Division |
THORPE, J
Care proceedings – allocation – magistrates' courts to transfer upwards cases which were lengthy or complex.
Care proceedings – appeal – file not to be sent to Registry until appellant had obtained copies of documents he was required to file and serve.
Care proceedings – child – legal representation – child's wishes differing from view of guardian ad litem – child of sufficient understanding to instruct solicitor – duty of solicitor to take instructions exclusively from child.
Care proceedings – reasons – desirability of assessment of witnesses to be stated and checklist in s 1(3) of the Children Act 1989 to be expressly applied.
The child, a boy, was born in September 1976. In 1989 his school found him to be of above average ability. In 1990 behavioural problems began to manifest themselves. The local authority and other agencies became involved but were unable to meet the child's problems by voluntary intervention. The child's reaction was one of consistent withdrawal. In September 1991 the local authority commenced care proceedings in a magistrates' court and on 15 October 1991 those proceedings were recommended under the Children Act 1989. On 16 October 1991 at an inter partes hearing the local authority applied for an interim care order and for a direction under s 38 of the Act that there be a psychiatric assessment of the child. An issue was raised as to whether the child was of sufficient understanding to make an informed decision to refuse to submit to the assessment. A child psychiatrist gave evidence that the child was suffering from a psychiatric condition, probably obsessive compulsive disorder. The magistrates held that the child was not of sufficient understanding to make an informed decision to refuse to submit to a psychiatric assessment. They made an interim care order and directed a residential psychiatric assessment. At the same hearing, as none of the parties sought to apply to allocate the case to a county court, the magistrates directed a timetable for the filing of statements and fixed further directions hearings and a final hearing for three consecutive days on 8, 9 and 10 January 1992. The estimate of three days proved inadequate and two further days on 15 and 28 January were required to complete the evidence and submissions.
During the hearing the doctor who was most immediately concerned with the psychiatric assessment of the child gave evidence that he did not suffer from any psychiatric disorder. Thedoctor said he was a sad, emotionally disturbed child. The child, then aged 15, attended throughout the hearing, sat beside his solicitor, and manifestly instructed him. By r 12(1)(a) of the Family proceedings Courts (Children Act 1989) Rules 1991 the child's solicitor was required to represent the child on the instructions of the guardian ad litem unless the solicitor
considered that the child wished to give instructions which conflicted with those of the guardian ad litem and that he was able, having regard to his understanding, to do so. Further, by r 11(3) of the 1991 Rules, where it appeared to the guardian ad litem that the child was instructing his solicitor direct, the guardian ad litem was required to inform the court which could give leave for the guardian ad litem to have legal representation. During the course of the hearing it became apparent that there was a divergence of instructions the child's solicitor was receiving from the child and the guardian ad litem. Nevertheless, on several occasions he assured the magistrates that he was finding no difficulty in that divergence of instructions.
The magistrates reserved their decision until 3 February when they made a care order and gave their reasons for that decision.
On 5 February the child's solicitor wrote to the court stating that the child wished to appeal but that he could not act for him as he did not consider an appeal was appropriate. The magistrates appointed another firm of solicitors to act for the child and on 18 February that firm filed notice of appeal under r 4.22 of the Family Proceedings Rules 1991 but did not file and serve on the other parties copies of the application and order appealed against, nor copies of the evidence and reasons for the decision as required by the rule. On 20 February the Principal Registry requested the clerk to the justices to send in the file in the case and the file was sent immediately, being received at the Registry on 26 February. Thereafter, the solicitors for the child were unable to obtain the documentation necessary to comply with r 4.22. Eventually, counsel for the child obtained the relevant documents from the High Court and undertook to distribute them to all counsel in the appeal.
At the hearing of the appeal it was submitted on behalf of the child: (i) that the magistrates had failed to apply the checklist in s 1(3) of the Children Act 1989 and to state their findings as to the credibility and reliability of the witnesses; and (ii) that the child was not properly represented as his solicitor had continued to act notwithstanding the gulf between the child's wishes and the views of the guardian ad litem.
Held – (1) The magistrates were required by r 21(6) of the Family Proceedings Courts (Children Act 1989) Rules 1991 to state their findings of fact and the reasons for the court's decision. As a matter of practice, magistrates should take care to state their assessment of the credibility and reliability at least of the most important witnesses. Also there was good sense in an express application of the checklist in s 1(3) of the Act to the particular facts of the individual case. In the present case, the reasons in their entirety showed that the magistrates had conscientiously carried out the balancing act the case required and the considerations embraced in the checklist were clearly included in the balancing exercise.
(2) In cases involving intelligent, articulate but disturbed children it was necessary for the court to apply rr 11 and 12 of the 1991 Rules realistically to ensure that not only was the professional voice of the guardian ad litem heard through an advocate's representation but that also the wishes and feelings of the child, however limited the horizon, should be similarly presented. A child suffering from a mental disability or a psychiatric disorder might not have sufficient understanding to instruct a solicitor. By the time of the substantive hearing in the present case the evidence was that the child was not suffering from such a disorder. Although there was evidence that the child was suffering from emotional disturbance, there was no evidence as to his capacity to give coherent and consistent instructions. If there was any question as to the child's ability in this respect, this should be the subject of specific expert opinion. The child did, in fact, give instructions to his solicitor. The solicitor fell into error in not giving proper weight to the terms of r 12(1)(a) and in failing to take his instructions exclusively from the child. Therefore, the child had not been properly represented at the hearing. This involved a fundamental forfeiture of a right of the child, and requiring the appellate court to exercise a discretion as to whether or not to order a rehearing. In the circumstances of this case it was inconceivable that the magistrates would have been deflected
from the course they inevitably took, however ably and persuasively the child's disturbed and distorted views had been presented. Therefore, the appeal would be dismissed. (3) Where the estimate of the length of hearing was in excess of two or three days, magistrates should consider transferring the case to a district judge for consideration as to whether it should be heard by a circuit Judge or a High Court Judge: see observation of Sir Stephen Brown, P in L v Berkshire County Court[1992] 1 FCR 481. Further, a complex case should be transferred upward. A case which seemed to bristle with complexity at the outset and was transferred upward under the Children (Allocation of...
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