(Court of Appeal, Black, Tomlinson LJJ, 1 November 2016)
Public law children – Care proceedings – Separate representation of the child
The girl’s appeal from a decision refusing her separate representation in public law children proceedings was allowed.
The 16-year-old girl had been the subject of care proceedings during which she had been separately represented. Her position was that she did not accept the judge’s findings and wished to return home. A care order was made in 2015.
She absconded on a number of occasions for the foster home and then lived with her grandmother’s home. When the parents moved to live with the grandmother the local authority applied for a recovery order pursuant to s 50 of the Children Act 1989 to return her to foster care.
The girl, as a litigant in person, attempted to discharge the care orders made in respect of herself and her brother.
In the recovery order proceedings the issue arose of whether the girl was competent to instruct her own solicitor. A child and adolescent psychiatrist was appointed to report but the girl failed to attend her appointment. The judge refused to grant her separate representation and found that she had not demonstrated that she was not being influenced by her parents to conduct litigation and that she did not understand the risks and had insufficient understanding of the issues. A recovery order was made.
At a later date the judge dismissed the discharge application. The girl did not attend since she lacked separate representation and her interests were represented by the guardian. The girl appealed the decision in relation to separate representation.
The test for establishing whether a child should instruct his or her own solicitor was set out in FPR 16.29(2). If the guardian’s solicitor considered that a child wished to give instructions other than those given by the guardian then the child was able (depending on his or her understanding) to give such instructions and the solicitor must follow them.
In this instance it was clear that the girl wished to give instructions differing from the guardian and, therefore, it fell to be determined whether she was able to give them. The court noted the importance of the child’s autonomy and that it might be in the child’s interests to have some direct involvement in the litigation.
The appeal was allowed. The judge below had confused the child’s welfare with her understanding when applying the test in FPR 16.29(2). Further, the judge had given too little weight to the girl’s age, her history of instructing her own solicitor and the views of that solicitor. Too much weight was given to the concerns of parental influence.