Re M (Minors) (Care Proceedings: Conflict of Children's Wishes: Instruction of Expert Witnesses)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Year | 1994 |
| Date | 1994 |
| Court | Family Division |
WALL J
Care proceedings – child's wishes conflicting with recommendation of guardian ad litem – child instructing solicitor direct – whether guardian ad litem should be separately represented.
Child – care proceedings – child instructing own solicitor direct – instructions conflicting with recommendation of guardian ad litem – duty of guardian ad litem to inform court of this fact at early stage – summons for directions if necessary.
Expert witnesses – child cases – manner in which evidence of such witnesses should be heard by court – careful planning by legal advisers required to avoid wasted time.
Medical evidence – instruction of medical experts in children cases – need to properly instruct expert witnesses – steps to be taken to agree or limit issues.
Care proceedings were brought in respect of a brother and sister aged 12 and 4 years respectively. A guardian ad litem was appointed to represent the two children under s 41(1) of the Children Act 1989. It became apparent at an early stage that the 12-year-old boy was expressing a strong wish to be returned home and to remain with his sister. The guardian ad litem took the view not only that care orders were necessary in the best interests of both children but also that the children might well have to be separated. The boy was capable of instructing his solicitor directly and therefore was separately represented. The court was informed of this at an early stage although no directions were sought under r 4 11(3) of the Family Proceedings Rules 1991. In particular, leave was not sought from the court for the guardian ad litem to be separately represented although in this case no harm had been done by the omission.
In the majority of cases the prospect of a divergence between the views of the guardian ad litem and a child who was capable of giving coherent and consistent instructions to his solicitors would emerge at a relatively early stage of the proceedings in the course of the guardian ad litem's inquiries. Therefore, guardians ad litem must be alert from the outset to the possibility that the situation envisaged in r 4 11(3) of the Family Proceedings Rules 1992 applied (that the child was instructing his solicitor directly or intended to conduct the proceedings on his own behalf), or that there was likely to be a conflict between the guardian ad litem's recommendation and the views of the child. If the child was capable of conducting proceedings on his own behalf then the guardian ad litem must discuss this
with the solicitor instructed on behalf of the child and bring the matter to the attention of the court at the earliest possible stage. The court would then be seised of the problem at an early stage and could take any necessary action, such as granting leave for the guardian ad litem to be separately represented.
It was essential that medical experts were fully instructed and sent all relevant papers which should be listed in the letter of instruction. Where an expert's report was put in evidence the letter of instruction should always be disclosed to the other parties and included in the court bundle. Doctors should ensure that all their clinical material relating to a child was available to the court; and medical experts who were going to be called to give evidence should be kept up-to-date with developments in the case relevant to their opinions. Proper liaison between legal advisers should ensure that time was not wasted on calling experts whose evidence was uncontroversial. Consideration should be given to the possibility of hearing all medical evidence together on one day so that expert witnesses could listen to each other's evidence and comment on it. Experts should always be invited to confer with each other pre-trial in an attempt to reach agreement or limit the issues.
Statutory provisions referred to:Children Act 1989, s 41.
Family Proceedings Rules 1991, rr 4 11 and 4 12.
Family Proceedings Courts (Children Act 1969) Rules 1991, rr 11(3) and 12(1).
Cases referred to in judgment:H (A Minor) (Care Proceedings),
Re [1992] FCR 330.
Oxfordshire County Council v M[1994] 1 FCR 753.
Eleanor Hamilton for the local authority.
Helen Hendry for the mother.
John Brodwell, solicitor, for the father.
Pat Gore, solicitor, for the guardian ad litem.
Stuart Gordon, solicitor, for the boy.
MR JUSTICE WALL.I have been dealing with two children, R aged 12 and his sister E aged 4. In a judgment given earlier today in chambers I made care orders in relation to both children. Save in so far as they emerge in the part of the judgment which I am about to deliver, the facts upon which I made the care order do not, in my judgment, call for report.
However, two points of more general importance arise from the facts of the case. The first relates to the correct procedure to be adopted in public law proceedings when, as here, the guardian ad litem has been appointed to represent more than one child, and finds (1) that what she proposes to recommend to the court as being in the best interests of the children conflicts with one of the children's wishes and (2) the child in question is able, having regard to his understanding, to give instructions to his solicitors which conflict with the guardian ad litem's views.
Cases in which a local authority seeks a care order are "specified proceedings" under s 41(6)of the Children Act 1989. Accordingly, pursuant to s 41(1) the court
must appoint a guardian ad litem for the child or children concerned unless satisfied that it is not necessary to do so in order to safeguard the child or children's interests.
The Act and the Family Proceedings Rules 1991 provide in a number of ways for the appointment of a solicitor to represent the child depending on the proceedings involved. In care proceedings the first, and most usual, is where there is no conflict between the wishes of the child and the guardian ad litem, and the latter appoints a solicitor to represent the child under r 4 11(2) of the Family Proceedings Rules 1991. This reads as follows:
"The guardian ad litem shall:
(a) appoint a solicitor to represent the child unless such a solicitor has already been appointed, and
(b) give such advice to the child as is appropriate having regard to his understanding and subject to r.4.12(1)(a) instruct the solicitor representing the child on all matters relevant to the interests of the child, including the possibilities for appeal, arising in the court of the proceedings."
Under s 41(3) to (5) of the Act, the court may appoint a solicitor to represent the child where the child concerned is not already represented by a solicitor, and the following further conditions are satisfied namely (1) no guardian ad litem has been appointed for him (2) the child has sufficient understanding to instruct a solicitor and wishes to do so, and (3) it appears to the court that it would be in the child's best interests for him to be represented by a solicitor. Any solicitor so appointed must represent the child in correspondence with rules of court.
In practice, this route will rarely, if ever, apply in...
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