Re T (A Minor) (Independent Representation)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Court of Appeal (Civil Division) |
SIR THOMAS BINGHAM, MR, STAUGHTON AND WAITE, L JJ
Child – making application for residence order without next friend or guardian ad litem – solicitor satisfied child of sufficient understanding to give instructions – whether court or solicitor should decide.
Child – applying for residence orders – adoptive parents opposed to application and allowed to institute wardship proceedings – both proceedings consolidated and Official Solicitor appointed as guardian ad litem against the child's wishes – whether appropriate to invoke wardship.
Official Solicitor – whether court could appoint Official Solicitor against the child's wishes – role of Official Solicitor as amicus curiae.
The child, now aged 13½, had been adopted in 1987 but difficulties had arisen and she was accommodated by the local authority in a placement with a temporary foster mother. The child had had some contact with members of her natural family and formed a wish to live with her aunt, the sister of her natural father. She consulted a solicitor who formed the opinion that she had sufficient understanding to give him instructions. The child made an application in the county court for leave to apply for a residence order authorizing her to live with the aunt. The application was made without the child having a next friend or guardian ad litem in accordance with the Family Proceedings Rules 1991 r 9.2A(1)(b). The district judge granted the application for leave ex parte and without calling for any evidence as to the child's understanding. The adoptive parents were opposed to the child's application and a welfare report was ordered. The case was transferred to the High Court and the adoptive parents applied successfully to institute wardship proceedings against the child, her aunt and the local authority. The two sets of proceedings were consolidated and the Official Solicitor was appointed guardian ad litem in the wardship proceedings. (Reported as Re T (Child Case: Application by Child)[1993] 1 FCR 646). The child appealed.
Held – allowing the appeal. (1) Subject to satisfying certain conditions, r 9.2A allowed a child to act without a next friend or guardian ad litem. Rule 9.2A(1) gave the child the same rights in wardship as in proceedings under Part II of the Children Act 1989 and the court had no power to impose a next friend or guardian ad litem on the child against her will. There was no advantage to the child or any other factor which justified giving the
child the exceptional status of a ward of court.
(2) It was ultimately for the court to decide whether a child who came before it had the necessary ability, having regard to his understanding, to instruct his solicitor under r 9.2A(1)(b)(i) as well as r 9.2A(1)(a) and r 9.2A(4). It would be rare for a solicitor's view of his client's understanding to be challenged or for the court to question it of its own motion. Such an issue should be resolved by a swift, pragmatic inquiry and conducted in a manner which involved the minimum delay and the least possible distress to the child concerned.
(3) The court could invite the Official Solicitor to act as amicus curiae but his powers and functions in that capacity were limited and he was unlikely to be able to assist to the same extent as a next friend or guardian ad litem. The power of the court to make such an appointment should be used sparingly.
Statutory provisions referred to:Children Act 1989, ss 8(1) and (3), 10(2) and (8), 37(1), 41(1) and (6).
Family Proceedings Rules 1991, rr 9.2, 9.2A(1), (4), (6) and (10).
Rules of the Supreme Court 1965, Ord 80.
Cases referred to in judgment:AD (A Minor), Re[1993] 1 FCR 573; [1993] Fam Law 405.
Gaskill, Re [1921] P 425.
Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] 1 AC 112; (1986) 1 FLR 224; [1985] 3 WLR 830; [1985] 2 All ER 402.
H (A Minor) (Independent Representation), Re[1993] 2 FCR 437.
Keyes, Re [1921] P 204.
President's Direction: Application by Children[1993] 1 FCR 584.
S (A Minor) (Independent Representation), Re[1993] 2 FCR 1.
W (A Minor) (Medical Treatment: Court's Jurisdiction), Re[1992] 2 FCR 785; [1992] 4 All ER 627; [1992] 3 WLR 758.
Judith Parker, QC and Roderic Wood, QC for the child.
James Holman, QC and David Bradley for the Official Solicitor.
Mark Evans for the adoptive parents.
LORD JUSTICE WAITE.This is another appeal arising from the changes introduced by the Children Act 1989 and subsidiary legislation into the previous rules of procedural disability preventing children from bringing or defending proceedings in their own right, and making it obligatory for their case to be maintained by a next friend when they were making a claim and a guardian ad litem when they were defending one. In the recent case of Re S (A Minor) (Independent Representation)[1993] 2 FCR 1 this court was called upon to consider the rights of a minor who had been made respondent to private law family proceedings between his parents to discharge his guardian ad litem. This present appeal concerns the rights of a child who wishes to initiate family proceedings against her parents without the intervention of a next friend.
The appellant, C, is aged 13½. She is an adopted child who wishes, against the opposition of the adoptive couple who are now her lawful parents, to resume her links, and eventually to go and live with, members of the natural family from which she became separated at the time of her adoption at the age of seven. She obtained leave to make an application for a residence order authorizing her to live with an aunt, who is the sister of her natural father. In the ordinary way she would not have been able to pursue that application in her own right: it could only have been maintained by a next friend on her behalf. Rules of court enacted under the Children Act 1989 do, however, authorize a minor to bring or defend certain family proceedings without the intervention of a next friend or guardian ad litem in certain specified cases. One of them is that a solicitor should have obtained and accepted the child's instructions to act for him or her, after satisfying himself that the minor is capable of giving him instructions for that purpose. C consulted a solicitor who was satisfied that he could accept C's instructions on that footing, and the application, therefore, proceeded with C as applicant in her own right and her adoptive parents (who strongly opposed it) as respondents.
While C's application was still at a preliminary stage, her adoptive parents applied successfully for leave to institute wardship proceedings against C herself, her natural aunt, and the local authority. They obtained orders for confirmation of the wardship, consolidation of the two sets of proceedings, and the appointment of the Official Solicitor as C's guardian ad litem in the wardship with the usual functions of reporting and representation and the duty of obtaining any necessary independent medical advice.
C now appeals against those orders, contending that once she has satisfied a solicitor that she has the required degree of understanding to give him instructions, she is entitled to make her own judgment as to what those instructions are to be. That right is not to be frustrated by making her a defendant to other proceedings in which precisely the same issues arise, but in which it is claimed (wrongly as C asserts) that a guardian ad litem can be imposed upon her.
The case is, therefore, one in which (as in Re S (A Minor) (Independent Representation)) the court is called upon to consider the governing provisions of rule and statute in the light of the underlying objective of the Children Act that children should have attention paid to their views, but be spared the risk of making, through lack of insight, understanding or maturity, choices which accord with their wishes but are in conflict with their genuine interests.
It will be convenient to consider those provisions under separate heads as follows.
1. The child as applicant.An application for a residence order (or one of the other orders for which provision is made in s 8(1) of the Children Act) may be made by the child concerned himself, but only with the leave of the court. Section 10(8) provides that:
"Where the person applying for leave to make an application for a section 8
order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order."
The court, in other words, must be judicially satisfied by appropriate evidence that the child has the necessary understanding. I refer later to the precise implications of that requirement.
2. The child as a party generally.Family proceedings are in general subject to the ordinary rules of disability, applying to all civil proceedings, which prevent a minor from bringing or defending any proceedings except by a next friend or guardian ad litem (as the case may be) – RSC Ord 80 and Family Proceedings Rules, r 9.2. A next friend or guardian does not in those circumstances act merely as the child's representative. He has an independent function to perform, and must act in what he believes to be the minor's best interests, even if that should involve acting in contravention of the wishes of a minor who is old enough to articulate views of his own – see the authorities cited in the side notes to RSC Ord 80 in the Supreme Court Practice. Those functions can be performed by anyone who has no interest in the proceedings adverse to those of the child: there is no need for a next friend or guardian ad litem in private law proceedings to be professionally qualified, or even a member of the panel of guardians recruited to discharge the public law functions established by s 41 of the Children Act. In practice, however, problems of representation and legal aid make it difficult for a lay person to act, and in the majority of private law cases the child's next friend or guardian ad litem...
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