Children and the instruction of solicitors

Kate Akerman explores a recent Court of Appeal case on the ability of a 14-year-old boy to instruct his own solicitor in care proceedings.

The lyrics from If Only You Would Listen, one of the songs belted out by the talented school children in Andrew Lloyd Webber’s School of Rock came to mind when I read the case of Re C (Child: ability to instruct solicitor) [2023] EWCA Civ 889 case in the summer holidays.

So many children in the work we do as family practitioners have a lot to say and do not feel listened to. The Court and practitioners strive to allow children to feel heard. The Children Act requires the Judge when making decisions about welfare to have regard to the wishes and feelings of the child. Judges will meet children although not for the purpose of obtaining the views of the child. Decisions are made that cannot always give precedence to the views of the child. Often, children acknowledge that and will tacitly allow their Children’s Guardian to make recommendations for them. But sometimes, the child himself wishes to have his views known – views which diverge from those of his Guardian - and to put his case through his own solicitor. The judgment of the Court of Appeal in Re C addresses the question of when and in what circumstances a child may instruct his or her own solicitor. It also raises issues about meetings between children and judges. It’s a “go-to” case for those practitioners who regularly act on behalf of children, whether in private or public law proceedings; paragraphs 43-71 provide a succinct and digestible summary of the relevant legal provisions.

Background to the case

The case concerned two children, A, a boy now aged 14, and B, a girl aged 13 who had been the subject of private law proceedings. They had been exposed to conflict in their parents’ relationship. The children remained in the mother’s care although their relationship with her was deteriorating. In 2020, the local authority issued care proceedings seeking to protect the children from that conflict and from the father’s behaviour which was seriously alienating them from their mother.

Consultant Psychiatrist, Dr Malcolm Bourne, was instructed as an expert witness and he was very clearly of the view that the father’s need for the children to idolise him and disparage the mother was damaging to the children’s emotional health. A (then aged 12) presented as someone who talks in an over-adult fashion overtly or unconsciously parroting his father’s beliefs and words.

By November 2021, placement at home was untenable and the children moved to separate foster placements where they remain. Dr Bourne was asked to assess whether A, whose views fundamentally differed from the guardian, was competent to instruct his own solicitor. His advice was powerful:

“Whereas I acknowledge and  agree that there is bound to be some degree of influence over a child by a parent, I also believe that in this situation, the degree of influence over A by his father is extreme and damaging. The papers that I have read describe the potential for the child to be ‘parroting’ a parent’s beliefs/words, and to act as their mouthpiece. In my opinion, this situation is more insidious and far-reaching than that as A has absorbed a belief system of his father’s; it is most damagingly connected with his mother, whom he describes above as having a ‘great hatred’ of. …

"I think that A understands well enough the ‘facts’ of the process of litigation including the function of the lawyer, judge and Guardian and his role with those. I do not believe that A has a good appreciation of the potential consequences of his involvement in litigation. He essentially saw no risk of difficulty or emotional harm from hearing about, for example, his family members, in the court environment, or reading about them - he said he had asked for my report, for instance.

"Whereas I appreciate that instructing his own solicitor would not necessarily mean he would have unfettered access to reports and papers, his lack of such understanding is of concern in the key issue for this report. …

"In conclusion then, I would say that the majority of the areas under consideration outlined above lead to a view that A is not competent to instruct his own solicitor. The main arguments ‘for’ his doing so are his overall intelligence and his strength of feelings about this. However, I would say that his strength of feeling is at least in part based on false beliefs or premises. So although there is something of a balanced answer, I would say that the overall answer is that A is very probably not competent to instruct his own solicitor, on around a 90:10 balance.”

After a contested final hearing in late 2021, the judge made Final Care Orders approving plans for the children to remain in foster care, with support by way of individual and family therapy. To that end, father was forbidden from contacting the children for three months. Rehabilitation to the mother remained a possibility. The Judge made a raft of findings  condemning the father’s inability to separate his own needs from those of the children, his total lack of insight into the harm caused by his alienating behaviour to the children, and his lack of respect for court orders. The court was clear that the children knew far more about the proceedings than was healthy for them. The court accepted unhesitatingly the views of Dr Bourne as to A’s competency to instruct a solicitor, as he lacked the emotional maturity to do so.

Sadly, within a matter of months, there was further litigation - a discharge application by the mother, prompted by father’s unauthorised contact with the children which thereby delayed therapy. Father followed suit with his own discharge application. The father had a spell in custody when he breached the non-molestation order. He published a book entitled Monstrous, Corrupt and Criminal Family Court, with its Social and Health Services, which contained significant personal information about the children, the case and professionals including fostercarers. Injunctions were granted by the High Court and Amazon removed the book from sale.

Dr Bourne was asked to look again at A’s competence to instruct a solicitor directly. In September 2022 he said:

“… A already and still talks as if he has excessive responsibility for his own outcomes, again something I believe that he has absorbed and been encouraged to think because of the way his father talks to him.

"I believe therefore that there is a very high risk of emotional damage to A if he does instruct his own solicitor yet the outcome is still not what he wants. He will feel even more responsible for this, and potentially for anything his father is upset or angry about. A believes that his own solicitor will represent his views more ‘purely’ (my word) than a Guardian would and therefore that the outcome of the case is more likely to be agreeable to him. I believe that A is mistaken to think this; this in itself is not surprising in his situation, but I believe this compounds the possible damage just described as it then fuels A’s consequent feelings of getting it wrong.

"In conclusion then, I would still say that the majority of the areas under consideration outlined above lead to a view that A is not competent to instruct his own solicitor. The main arguments ‘for’ his doing so remain his overall intelligence and his strength of feelings about this, even if that is in part based on false beliefs or premises. But the origins of those beliefs very much reflect the lack of independence of thought that A has been able, or allowed, to develop. The argument against his having sufficient independence to instruct, and the harm done through assigning him that level of authority and responsibility, is in my opinion very strong, and therefore means that A is not competent to instruct his own solicitor.”

Dr Anthony James completed a psychiatric risk assessment of A. He described A as a young 14 -year-old who, although giving the impression possibly of being older, is actually quite immature;a child close to and influenced by the views of his father, and a child who would be best supported at school by focusing on normalcy, ie by making clear to him that there is a world outside of the court process etc.

In March 2023, the judge met A at his request and in the company of his solicitor and foster carer. The meeting lasted 1 hour and 25 minutes. A told the Judge he wanted to see court documents, complained about his mother blaming her for him being in foster care, and criticised the professionals involved. He said he would not engage in therapy. There was an interesting exchange as follows:

“J – Are you glad you came to see me or has it not been good? You can be honest. I won’t mind.

A - I am not sure what has been clarified.

J – For me, it’s always better to see somebody if they want to see me. I am not taking evidence but there will be bits of what you have said to me that will stick with me. I will certainly remember how tall you are and how mature you are. I know that families and lives are not frozen in time. Things happen and things move on. It does not stand still. I hope that there is less of a whirlwind and that it is easier to find a way through. It’s a bit like being in a  sandstorm. If you are in a sandstorm, you can’t see where you are going. Where we have got to now is better than where you were before. But it’s not simple. It’s important that your voice is heard. It has been helpful for me to see you. It is not necessary that I see every child. I don’t need to see every single child. But I think it helps me.

A – To continue your analogy about a sandstorm, I want to give you goggles and a compass.

J – You really are mature. That’s very clever.”

A few weeks later in April 2023, the father sent an email to the parties complaining bitterly about the dishonest and criminal family system. An hour later, A submitted his own lengthy complaint, describing the system as “sick” and “criminal” and how everyone had got everything wrong, and demanding separate representation.

A note of A’s meeting with the judge, together with A’s complaint, was sent to Dr Bourne. The expert was not for moving on the issue of litigation capacity [para 23].

The solicitor for the children made an application for separate representation of A. The application acknowledged the views of the experts but prayed in aid A’s engagement with the judge at the above meeting and the way in which A understood the proceedings, had articulated pertinent questions, and  listened to the answers. On 24th May 2023, the judge heard the application which she granted, concluding, inter alia, that she found A to be mature, to some extent reflective, and intelligent, and that the risk of harm is higher were he not afforded separate representation.

The Appeal

The mother, supported by the Local Authority, sought, and was granted permission to appeal this case management decision. They argued that the judge:

• had been distracted by her meeting with A which improperly fed into the forensic process, and she improperly formed her own assessment
  of A’s competence.
• had placed insufficient weight upon the clear conclusions of Dr Bourne.
• had given insufficient consideration to the extent to which A had been alienated by the father and the impact of this on the child’s sufficiency of
  understanding.

The father interpreted the judge’s response to the meeting with A as a U-turn, a lightbulb moment where the judge realised that A was speaking freely for himself, a position which provided further evidence if any were needed as to the father’s complete lack of insight.

The Children’s Guardian argued that:

• it would be to create an artificiality if the judge were to cast out her impressions of A from the meeting, which chimed with those of the solicitor.
• the judge was right to conclude that A would be more likely to blame others if he did not achieve the outcome he wants if he is unable to instruct his own solicitor.
• the logical and perverse consequence of the mother’s argument is that A would end up being represented by a Children’s Guardian throughout his minority unless he changed his views.
• The risk of harm to A’s welfare by the case management decision could be mitigated by restricting access to the court documents and not  allowing him to be in court throughout hearings.

The Law
As to children instructing solicitors, Peter Jackson LJ takes the reader through the relevant international and domestic provisions:

• the United Nations Convention on the Rights of the Child 1989 which has been ratified by the UK although not incorporated into domestic law. Article 12 essentially provides for children who are capable to be able to provide their views and have the opportunity to be heard.
• Section 41(1) of the Children Act 1989 requires the Court to appoint a guardian in specified proceedings (eg. care or discharge proceedings) unless satisfied it is not necessary to do so in order to safeguard the child. (NB. If the Court joins the child to non-specified proceedings – typically private law proceedings – FPR r 16.4 requires the Court to appoint a guardian for the child).
• Part 16 of the FPR and PD16A govern the representation of children in family proceedings.
• Section 1(3)(a) of the Children Act imposes a duty on the court to have particular regard to the wishes and feelings of the child. FPR 16.20(3) imposes the same duty on the guardian.
• FPR 16.29 concerns the question of who instructs the child’s solicitor – ie. the children’s guardian, and by r16.29(1) the solicitor must conduct the proceedings in accordance with the instructions of the guardian.
• However, r16.29(2) provides for the scenario whereby the solicitor for the child considers that the child wishes to give instructions which conflict with those of the guardian and the child is able to give such instructions. In these circumstances, the case is conducted in accordance with the child’s instructions. The child and solicitor then ‘separate’ from the guardian who usually continues without legal representation.
• Such a solicitor will be a member of the Law Society Children’s Panel and they make the decision as to capacity. Usually, expert advice is not necessary. However, this was not a usual case and the child’s solicitor, quite properly in the view of the appeal court, made an application so that the matter could be considered by the court, which has the ultimate right to decide whether a child has the ability to instruct a solicitor: Re CT (A Minor) (Wardship - Representation) [1993] 3 WLR. 602, [1993] 2 FLR 278 at 614F.

Surveying the relevant caselaw and rules, Jackson LJ states:

The question for the child’s solicitor or (as the case may be) the court is Does this child have the ability to instruct a solicitor in the particular circumstances of the case, having regard to their understanding?

The assessment will be based on a broad consideration of all relevant factors and any opinions from solicitors and experts. The guidance given by Black LJ (as she then was) in Re W (A Child) (Care Proceedings: Child's Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 bears repeating:

“Understanding can be affected by all sorts of things, including the age of the child, his or her intelligence, his or her emotional and/or psychological and/or psychiatric and/or physical state, language ability, influence etc. The child will obviously need to comprehend enough of what the case is about (without being expected to display too sophisticated an understanding) and must have the capacity to give his or her own coherent instructions, without being more than usually inconsistent.”
…
The assessment will be case-specific. It will not be driven by welfare factors, or by a theoretical comparison between protection and autonomy, but by a practical assessment of the child’s understanding in the particular context of the case. There are no presumptions and care will be taken not to over-value any particular feature. The consequence of a sound assessment will be that the child’s rights and interests are respected and preserved.”

Of particular relevance to the facts of this case, Black LJ supra observed:

Caution needs to be exercised before allowing a conclusion that a child was the parents’ mouthpiece to deny an older child her own solicitor on the basis that she lacks understanding.

There are difficulties in teasing out whether a child’s view is whole or in part the child’s independent view or the product of influence.

That a child’s view might be misguided does not equate to a lack of sufficient understanding.

There is a danger in becoming embroiled in satellite litigation about the child’s understanding, where that is a contentious matter in the main proceedings.

Take account of the risks of the child taking part (or not) in the litigation but do not elevate this to an assessment of welfare. As to children meeting judges:

The purpose is for the child to meet the judge, not for the judge to meet the child.

The purpose and format fall under the 2010 FJC Council Guidelines for Judges Meeting Children who are Subject to Family Proceedings. Judges should give close consideration to the numbered guidelines. 

Meeting children can be one way of helping them to feel more involved in and connected with the proceedings.

The meeting is not for the purpose of gathering evidence. It should help the child to understand that it is the Judge who makes the decision, and that the outcome is never the responsibility of the child.

A meeting may also benefit the judge and other family members: it does not change the evidence, but it may illuminate certain aspects of it.

The Decision

Lord Justice Peter Jackson gives the lead judgment, allowing the appeal, discharging the order permitting A to instruct his own solicitor and remitting the case to the first instance judge. The Court concluded that the case management decision was wrong in the “distinctive circumstances” of the case.

What led the judge, who had otherwise dealt with the litigation impeccably, to fall into error? In short, it was her response to the meeting she had with A. And there were three errors:

The judge made her own assessment of A’s ability to instruct that went way beyond the permissible use of such a meeting. This was an assessment which went to the heart of the decision, and to make matters worse, she did not disclose to the parties what she was minded to do, and so no-one had the opportunity to divert her.

The rationale for her assessment was not sustainable. The judge was impressed by A’s use of analogy and language – the goggles and compass to navigate the sandstorm. Further thought would have shown that that was a vivid sign of A’s lack of understanding. What A was suggesting was that it was the judge – not he – who needed the compass and goggles, thereby rejecting her assessment of what had gone wrong in the family. To allow A the right to instruct his own solicitor would simply make matters worse, for it gives further armoury to the father and son’s campaign to perpetuate a damaging narrative.

The judge concluded that A was very mature and very insightful – totally at odds with the evidence from Dr Bourne and Dr James, and without giving a reason for rejecting their evidence (particularly in circumstances where she had previously unhesitatingly accepted Dr Bourne’s assessment).

The judge was distracted by the general observations about exercising caution before depriving older intelligent children of their own representation, leading her to overlook how extreme and effective the father’s abuse had so far been. A had not previously had his own solicitor, and nor was this a case as is commonly encountered where a child has formed an unwise view of their own, even if it might be coloured by adult influence.

Kate Akerman is a barrister at Deans Court Chambers.