Re H (A Minor) (Independent Representation)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Family Division |
BOOTH, J
Child – wardship – child applying for leave to participate in the proceedings and for removal of Official Solicitor as guardian ad litem – whether child of sufficient understanding.
Official Solicitor – ceasing to act as guardian ad litem – invitation to act as amicus curiae – role of Official Solicitor as amicus curiae – form of order to be used for such appointment.
H was born on 6 January 1978 and was now aged 15 years and 2 months. Until February 1992 he had lived with his parents and sister in England. The parents then moved to live in France but H wished to stay in his home town. H's parents arranged for him to live with S and his family and the social services were informed of this arrangement.
In May 1992, S was arrested and charged with serious sexual offences against another 14 year old boy. H's parents removed him to France but he ran away and returned to England. The parents commenced wardship proceedings and were granted care and control of H with leave to remove him to France. An injunction was made restraining S from having contact with H. H was removed to France by his parents but he ran away again and returned to England. Since his return, he had lived with Mr and Mrs P and had become the patient of Dr A, a child and adolescent psychiatrist.
Applications by H and S for the discharge or variation of the injunction restraining contact between them was refused. H had totally rejected his parents who believed he was wholly under the influence of S, his family and associates. There was a conflict between Dr A and Dr W, the consultant in child, adolescent and family psychiatry instructed by the Official Solicitor.
H applied to participate in the proceedings and for the Official Solicitor to be removed as guardian ad litem. The application was opposed by the parents and the Official Solicitor.
Held– granting the application: (1) The test to be applied when considering such applications was laid down in Re S (A Minor) (Independent Representation)[1993] 2 FCR 1, namely, whether the child had sufficient understanding to participate as a party in the
proceedings. That test should be considered in the light of all the circumstances of the case and in the light of what had already happened as well as what was likely to happen in the course of proceedings in the future. It was not for the court in applying that test to take into account what the court may consider to be in the best interests of the child. This case was exceptional in that H had played a far greater part in the proceedings so far than was usual or desirable. It would be artificial if H were not able to put his own case.
(2) In difficult cases such as this, where the Official Solicitor ceased to act as guardian ad litem, he should be appointed, subject to his consent, as amicus curiae. This was a new role for the Official Solicitor and the role of amicus curiae would be extended to cover the wide range of assistance which it would be appropriate for the Official Solicitor to give to the court. The Official Solicitor would be acting in that capacity, not as guardian ad litem but as independent advisor to the court. It would not be appropriate for him to be joined as a party to the proceedings.
NoteThe following form of order was approved where the Official Solicitor was made amicus curiae:
Statutory provision referred to:"1. The Official Solicitor do act in the said proceedings as amicus curiae subject to his consent.
2. The Official Solicitor be at liberty to interview such people, obtain such evidence, call such witnesses and file such reports as he may be advised.
3. The Official Solicitor be at liberty to make such applications as may be advised.
4. All such material as may be obtained by any person or party and which it is intended shall be used in these proceedings shall be served upon the Official Solicitor and all parties."
Family Proceedings Rules 1991, r 9(2)(a).
Cases referred to in judgment:H (A Minor) (Care Proceedings), Re[1992] 2 FCR 330.
S (A Minor) (Independent Representation), Re[1993] 2 FCR 1.
Andrew Jackson for the parents.
Anthony Kirk for the child.
Richard Bond for the Official Solicitor.
MRS JUSTICE BOOTH.This is an application by H, who was born on 6 January 1978, so he is now 15 years and two months of age. He is a ward of court. The originating summons was issued on 16 June 1992 by the plaintiffs, his father and his mother. On 21 July 1992 the Official Solicitor was appointed on his own application to act as guardian ad litem for H. H was not then made a party to the proceedings. That, I think, must have been an oversight or misunderstanding of
the procedures. He ultimately became a party on 19 October 1992, acting then through his guardian ad litem, the Official Solicitor. The application before me is that H be allowed to continue to defend the proceedings without the Official...
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