Can children appoint their own solicitor in family cases?
Children proceedings, whether public or private, include children of varying ages and all with different levels of understanding of the process that they are involved in. Within public children law cases which can involve children going into foster care, the Guardian appointed by CAFCAS (Child and Family Court Advisory Service) represents the child, their wishes and best interests. However, the view of the Guardian does not always align with the views of the child. In some cases a child is also entitled to appoint their own solicitor. Sarah Pennicott, Family Solicitor, explains here what a child can and cannot do during proceedings in which they are involved.
How involved should children be in proceedings?
This point was recently at the centre of a child care case involving a 16 year old girl (Re W (a child)[2016] EWCA Civ 1051). The girl (W) did not accept the judge’s findings in the case and wished to return home to her parents. W absconded from the foster home to her grandmothers, and the Local Authority applied for a recovery order to return her to foster care. During these proceedings the issue arose of whether W was competent to instruct her own solicitor. The judge refused to grant her separate representation due to her failing to demonstrate that she was not being influenced by her parents, that she did not understand the risks and she had insufficient understanding of the issues.
W appealed this decision and the appeal was allowed. Because W’s instructions differed from the Guardian’s view, it had to be determined whether she was able to give such instructions. It was held that it could be in a child’s best interests to have some direct involvement in the proceedings and her autonomy was of great importance. The following was considered:-
The child's comprehension and capacity to give coherent instructions.
If a psychiatric opinion is required, the child must be told the importance of keeping the assessment appointment and there are no concerns about the child's mental health.
The fact that the child's view coincides with their parents' view does not mean that it is not their own view.
The child's misguided view does not mean they lack sufficient understanding to give instructions.
Disagreement with professionals about what is in their best interests does not mean a child lacks sufficient understanding.
The risk of harm from not participating in the litigation.
When is separate child representation appropriate?
Separate child representation is highly unusual within private children proceedings. Frequently these proceedings consist of two parents who are disputing with whom the child should live with and/or when the child should have contact with the other parent. Although CAFCAS are involved in these cases, they usually prepare a report which includes safe guarding checks. The children’s wishes and feelings are not necessarily directly represented.
For very young children it can be difficult to ascertain their true wishes and feelings with regard to contact with either parent as this can differ from one day to another. However there can be an argument that children approaching senior school age may need separate representation. This may be suitable where the child has a standpoint which is inconsistent with both parents or their views and wishes are not adequately met by the CAFCAS report. It is usually the case that the court can successfully establish a child’s wishes and feelings from the CAFCASS report alone.
“Separate representation could be appropriate where contact arrangements have broken down due to a child’s wishes and negative feelings regarding such contact and the matter needs to return to court,” concludes Sarah. “There is no case law which supports separate representation arising in this situation, however the considerations contained in this recent case could be the starting point for a child with understanding to apply for separate representation.”
Children will be seen and heard in Family Courts
Children will be given a greater voice in the family justice system so they can tell judges how they feel and what they think about the family disputes they are involved in.
Published 25 July 2014
From:Ministry of Justice and The Rt Hon Simon Hughes
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
The government has made the commitment that from the age of 10, children and young people involved in all family court hearings in England and Wales will have access to judges to make their views and feelings known.
The announcement was made following calls from young peoples representative group, the Family Justice Young People’s Board, that for too long children have been pushed and pulled through the family justice system with little or no say on what happens to them.
Family Justice Minister Simon Hughes said:
Children and young people must by law have their views heard before decisions are made about their future, and where decisions are made that will impact them. At the moment, it is still too often that their views are not heard.
Our commitment to giving children the chance to speak to a judge and make clear their views means children will not only be seen in family courts but they will have their own voice heard. This will put them firmly at the heart of the Family Justice System.
The government will also work with mediator sector so that children have appropriate access to mediators in cases which affect them.
The age of 10 has been used to be consistent with other existing policy and practice in this country. It is the age of criminal responsibility for young people in England and Wales.
The changes that will effect public and private law cases will be implemented as soon as is practically possible.
The Ministry of Justice will be working with the Family Court judges, with the Children and Family Courts Advisory and Support Service and most importantly with young people themselves to implement this change.