The voice of the child

Children – Public Law

26 March 2024

In my practice, which almost exclusively relates to proceedings in respect of children, it is often suggested by parents that the voice of the child is not being heard.

This is something that I hear in both public law (usually proceedings issued by the State, in the form of care proceedings) and private law (usually proceedings between separated parents regarding arrangements for their children).

This article is an attempt to distil the ways in which the voice of the child is or should be ascertained, many of the relevant principles relating to both public and private law proceedings, although I will sometimes distinguish between one or the other.

I will also consider the circumstances in which the child might be able to instruct a solicitor directly, without the need to rely upon his parents or others such as CAFCASS Children’s Guardians to do so upon their behalf.

The subject includes multiple strands, many of which could fill detailed articles individually, meaning that constraints of space have necessitated me dealing with some of these matters in short order.

The obvious starting point is the Children Act 1989 which provides at Section 1(1) that when a court determines any question with respect to the upbringing of a child, the child’s welfare should be the court’s paramount consideration.

At Section 1(3) there is a list of the matters that the court must have regard to in determining what is in the child’s best interests.

The case law is clear that it is for the court in any given case to determine what weight, if any, that should be given to each of the matters listed.

Relevantly for the purposes of this article, at Section 1 (3) (a), the court must have regard to “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”.

In public law proceedings the child is always made a party to the proceedings.

In private law proceedings the child will not be an automatic party but will sometimes be joined as a party pursuant to Rule 16.4 Family Procedure Rules 20210. The circumstances in which the court might take this step are set out in Practice Direction 16 A. For present purposes it suffices to state that they usually involve cases of particular difficulty or parental acrimony.

If, as would usually be the case, the child is not made a party to private law proceedings, wishes and feelings would generally be obtained in a report directed pursuant to section 7 Children Act 1989, often including a full welfare analysis.

Section 41(1) Children Act 1989 provides for the court to appoint a Guardian for a child subject to specified proceedings (which include applications to make or revoke a care order) unless it is satisfied that it is not necessary to do so in order to safeguard the child’s interests.

The Rules governing the representation of children in family proceedings are found in Part 16 of the Family Procedure Rules above.

It was noted by Baker LJ in Re Z (Interim Care Order) [2020] EWCA Civ 1755 the Rules and their application are far from straightforward.

Under Practice Direction 16 A  6.2, which relates to public law proceedings, the Guardian must appoint a solicitor for the child (unless a solicitor has already been appointed). The Guardian would also appoint a solicitor in private law proceedings following Rule16.4 being invoked as above.

The duty to ascertain the child’s wishes and feelings pursuant to Section 1(3) above falls upon the Guardian.

FPR 16.29 concerns the question of who instructs the child’s solicitor:-

  1. Subject to paragraphs (2) and (4, a solicitor appointed:-
  • under Section 41 (3) of the 1989 Act; or
  • by the Children’s Guardian in accordance with PD 16 A,

     must represent the child in accordance with the instructions received from the Guardian.

     2.  If a solicitor appointed as mentioned in paragraph (1) considers, having taken into account the matters referred to in paragraph (3) that the child:-

  • wishes to give instructions which conflict with those of the Children’s Guardian; and
  • is able, having regard to the child’s understanding, to give such instructions on the child’s own behalf;

    the solicitor must conduct the proceedings in accordance with instructions received from the child.

    3.  The matters relevant for the purposes of paragraph (2) are:-

  • the views of the Children’s Guardian; and
  • any directions given by the court to the Children’s Guardian concerning the part to be taken by the Children’s Guardian in the proceedings.

In short therefore, the starting point is that the solicitor must conduct the proceedings in accordance with instructions received from the Guardian, whose role is to act on behalf of the child with the duty of safeguarding the child’s interests having regard to the principles set out in the welfare checklist, and also any other matters relevant to the proceedings including the child’s attendance at court (PD 16 A 6.6 (b)), but if the solicitor considers, having taken into account the Guardian’s views and any directions given by the court that the child wishes to give instructions which conflict with those of the Guardian and is able, having regard to the child’s understanding, to give instructions on his or her own behalf, the solicitor must conduct the proceedings in accordance with instructions received from the child.

In such circumstances the Guardian would continue to carry out their duties, usually without legal representation.

Solicitors representing children in family proceedings will be members of the Law Society’s Children Panel, an accreditation signifying experience and expertise in representing children.

The judgement as to whether the child has the ability to instruct is a matter for the solicitor having regard to the circumstances of the particular case. As below, the case law makes it clear that expert advice will not always, or even usually be necessary.

In a case soon after the implementation of the Children Act, Re S (A Minor) Independent Representation) [1993] 2 FLR 437 Sir Thomas Bingham MR identified the need to balance between two considerations.

Firstly, that children are human beings in their own right with individual minds and wills, views and emotions which should command serious attention. …Second, that a child is after all, a child. The reason why the law is particularly solicitous in protecting interests of children is because they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will react and the imagination to know how others will react in certain situations, lacking the experience to measure the probable against the possible”.

His Lordship distinguished between “a babe in arms and a sturdy teenager on the verge of adulthood”, and how the competing aspects above would be likely to be different for children of different ages.

He referred to the well-known judgement of Lord Scarman in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, regarding “competent” children, making the point that “the process of growing up is a continuous one”, and emphasising that “the judge has to do his best on the evidence to assess the understanding of the individual child in the context of the proceedings in which he seeks to participate”.

In Mabon v Mabon [2005] EWCA Civ 634, a private law case involving 6 children, of which the eldest 3 were aged 17, 15 and 13, the court allowed their appeal from a refusal to allow them to instruct their own solicitor. Thorpe LJ stated at paragraph 29:-

In testing the sufficiency of a child’s understanding I would not say that welfare has no place. If direct participation would pose an obvious risk of harm to the child arising out of the nature of the continuing proceedings and, if the child is incapable of comprehending the risk, then the judge is entitled to find that sufficient understanding has not been demonstrated. But judges have to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings”.

In Re W (A Child) (Care Proceedings; Child’s Representation) Practice Note [2016] EWCA Civ 1051, the Court of Appeal allowed an appeal upon behalf of a 16 year old child who had been refused permission to instruct a solicitor directly in an application for a recovery order after she had ran away from foster care to be with her parents, following earlier care proceedings in which she had been instructing her solicitor directly.

Black LJ stated (at paragraphs 32 & 35) that caution must be expressed before allowing the conclusion that the child was the parents’ mouthpiece or agent, such as to deny a child of her age her own solicitor on the basis of a lack of sufficient understanding.

She identified the difficulties in ascertaining whether a view is in whole or part the child’s independent view or the product of influence; but stated that the fact that the child’s views might be considered to be misguided in some way does not necessarily mean that the child does not have sufficient understanding.

She identified the danger of the court becoming embroiled in satellite litigation about the child’s understanding, where that is a matter remaining contentious in the substantive proceedings.

She went on to identify the need for caution when taking into account the risks to a child from direct participation, so that the judge does not stray into treating the question as a welfare assessment rather than an assessment of understanding. Whilst the risk of harm can include those arising from direct participation, not participating can also involve risks, including disaffection and the lost opportunity for engagement with a trusted professional.

She stated paragraph 36:-

Sometimes there will be a clear answer to the question whether the child is able, having regard to his or her understanding, to give their own instructions to a solicitor. In cases of more difficulty, the court will have to take a down to earth approach to determining the issues, avoiding too sophisticated an examination of the position and recognising that it is unlikely to be desirable (or even possible) to attempt to assemble definitive evidence about the matter at this stage of the proceedings”.

She went on to say:-

The judge would expect to be guided by the Guardian and by those solicitors who have formed a view as to whether they could accept instructions from the child. Then it will be for the judge to form his or her own view on the material available at that stage of the proceedings, sometimes (but certainly not always) including expert opinion on the question of understanding

And that:-

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”.

In Re C (Child; Ability to Instruct Solicitor) [2023] EWCA Civ 889, in reviewing the line of authorities above, Peter Jackson LJ stated at paragraph 58:-

Drawing matters together….whether the answer falls to be given by the child’s solicitor or by the court, the question will be “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”.

As above, in some proceedings children can be determined by the court to be competent to provide instructions directly to a solicitor, and the court can grant permission for them to do so.

For other children, if not competent, CAFCASS in their role as Guardian in public law proceedings, sometimes in their role as Guardian in private law proceedings and in any event in compiling their Section 7 reports in private law proceedings, often invite children to provide letters for judges setting out their wishes and feelings.

Sometimes, although far more rarely, the child might meet with the judge. These meetings are governed by the Guidelines for Judges Meeting With Children who are subject to Family Proceedings, issued by the Family Justice Council.

It would be beyond the scope of this article to repeat the contents of the Guidelines here, but it should be emphasised these meetings are not to be used as evidence gathering exercises (if children are to provide evidence wholly different procedures apply) but rather to give child the opportunity to express themselves.

Such meetings have to be carefully planned, including who will be present (usually a Guardian), how what was discussed should be conveyed to the parties (who would not be expected to be present) and how the outcome of the proceedings should be relayed to the child.

By way of conclusion to this article, and as I took as my starting point, the ascertainable wishes and feelings of any child subject to any proceedings must be obtained. From the short summary of the alternatives above, it will be seen that going beyond simply that information being obtained and provided to the court, there are situations in which the child might be able to meet with the judge, or actively pursue a case through a solicitor. It is essential for all practitioners dealing with cases regarding children to keep the relevant principles in mind and to ensure that their voices are heard appropriately.

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