Separate representation of children 

Children’s law case regarding an appeal of a first instance decision by a Circuit Judge. This is key decision relating to a child’s capacity to instruct a solicitor directly in private law proceedings. 

CS v SBH & Ors [2019] EWHC 634 (Fam) (18 March 2019) https://www.bailii.org/ew/cases/EWHC/Fam/2019/634.html

Important guidance on the separate representation of children. The appeal itself, brought by the child instructing a solicitor directly, is highly unusual on its facts, with, in effect, two solicitors disputing the capacity of the 12 year old child to instruct a solicitor; the solicitor instructed through the Children’s Guardian contending the child did not have capacity and the other solicitor contending that she did. After a careful analysis Mr Justice Williams found that the child did not have capacity to pursue the appeal without a children’s guardian.

The full Judgment is essential reading for children panel solicitors. The following paragraphs of Mr Justice Williams’ Judgment are key to his Judgment:

35. Although the drafting of FPR 16.6 (3)(b)(ii) in particular is not crystal-clear it seems clear that where FPR 16.6 (3)(b) is engaged it is the solicitor not the court which makes the initial decision as to the child’s understanding to give instructions and that no application is required to endorse that solicitors conclusion. That seems to be clear from the fact that 16.6 (3)(a) refers to the court’s permission being required ‘or’ the terms of 16.6 (3)(b) being fulfilled and the fact that FPR 16.6 (6) refers to the court having a role in relation to 16.6 (3)(a) or (5) but not in relation to FPR 16.6 (3)(b). Thus where a solicitor considers the criteria set out in subparagraphs (i) and (ii) of FPR 16.6(3)(b) are met the child may conduct proceedings without a children’s Guardian and the court’s endorsement of that is not required.

36. However, that does not appear to be the end of the matter. In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA Court of Appeal (Sir Thomas Bingham MR, Waite and Staughton LLJ) specifically considered the effect of the identically worded predecessor to FPR 16.6 (3) (b)(i) namely FPR 1991 9.2A (1) (b) (i). The Court of Appeal considered that taken together with FPR 1991 9.2A (10) that the court retained the ultimate right to decide whether a child required a Guardian or not. Lord Justice Waite said

‘…if the rule is to be construed according to the whole tenor of the Act and its subsidiary legislation, it must in my view be taken to reserve to the court the ultimate right to decide whether a child who comes before it as a party without a next friend or guardian has the necessary ability, having regard to his understanding, to instruct his solicitor’

38. … It seems clear to me that it is in the best interests of a child that the court remain the ultimate arbiter of whether the child has understanding or sufficient understanding to act without a Guardian for the reasons identified by Mr Holman in Re CT as to the circumstances in which a solicitor’s view might not be reliable. The court may raise the issue of its own motion and make the determination under FPR16.6(10).

39. … it is ultimately for me to decide whether the child has understanding or sufficient understanding to conduct the proceedings without a Guardian.

40. The wording of FPR 16.6(3)(b)(i) refers to a solicitor considering that ‘the child is able having regard to the child’s understanding to give instructions in relation to the proceedings.’ When applying FPR 16.6 (10)(b) the court would be considering whether that condition remained fulfilled. The wording of FPR 16.6(6) refers to the court considering that the child has sufficient understanding to conduct the proceedings concerned without a Guardian. There is on the face of it therefore a difference in what the court is considering; on the one hand ‘able having regard to their understanding to give instructions’ on the other ‘sufficient understanding to conduct the proceedings’. Is there a material difference between the two? In Re S (A Minor) (Independent Representation) – [1993] 2 FLR 437, the Court of Appeal appeared to consider that there was at least a technical difference because FPR 16.6(3)(b) contemplates a solicitor being instructed whereas 16.6(5) at least contemplates the child conducting the proceedings in person. However the expressions do tend to be used interchangeably. In Re W (representation of child) [2017] 2 FLR 199 the Court of Appeal refer to sufficient understanding interchangeably with understanding. It is also clear from the Court of Appeal’s decision in re CT (above) where they refer to ‘necessary ability having regard to his understanding‘ that there is a parallel with ‘sufficiency’. If one considers what lies at the core of the issue it is whether the child has the understanding to deal with the legal proceedings in question having regard to the subject matter of them and the nature of the proceedings. Having regard to what the House of Lords concluded in relation to Gillick competence it seems to me that whether the court is considering the question of able to give instructions having regard to their understanding or has sufficient understanding to conduct proceedings under FPR16.6(3)(b)(i) or (6) or (10) or 16.29(2)(b) or (8)(b) that the core evaluation is whether the child has sufficient understanding and intelligence to be able to give instructions or conduct the proceedings. Whilst I would not rule out the possibility of a case arising where the different formulations might result in a difference in outcome, in most cases the application of an objective assessment by the court whether under 16.6(6) or under 16.6(10) or 16.29(2) is likely to result in the same answer to the question of the child’s competence.”

Mr Justice Williams helpfully lists the factors he must consider to decide whether a child has sufficient understanding to give instructions (paragraph 64 and paragraph 65 of his Judgment). He states: ‘In some cases, an expert assessment might be required in particular where the solicitors’ assessments are relatively evenly balanced or the court is otherwise unable to reach a clear view.’

Deborah Piccos

Vice Chair SAHCA

Consultant Solicitor Advocate at TV Edwards LLP

September 2019