The Times published a story on 13 September under the headline, ‘Judge lets 14-year-old boy choose his own lawyer’. The judgment is on BAILII here – Re Z (A Child: Care Proceedings: Separate Representation)  EWFC B57. We don’t know why the Times has not bothered to link to BAILII, but instead comments, ‘The judge…has outlined his decision in a written ruling. He said the boy could not be identified.’
The substance of the Times story is that a 14-year-old boy, Z, who is subject to an application for a care order has successfully applied to the court to instruct his own solicitor direct, instead of being represented by the solicitor already appointed for him by his Cafcass guardian. This is quite a common occurrence with teenagers in public law proceedings where the Cafcass guardian reaches an opinion that the child’s own expressed wishes are not the same as what is actually in his best interests. There is therefore a conflict. The Law Society has detailed guidance for lawyers on what to do if they are instructed by a guardian but the child says they don’t agree Basically, this turns on whether the young person is ‘Gillick competent’ and has the level of maturity to understand the consequences of their own decisions. The law is set out carefully in the judgment of HHJ Bellamy.
Although we don’t learn much from the news story itself, the judgment contains a very interesting point in that the clinical team who assessed Z wrote to him personally, as described by the judge –
15. At the time the report was finalised the authors wrote to Z, via the guardian, setting out their recommendations and explaining their reasons. The letter has been written in an age appropriate style. It is an excellent summary of the main report.
16. Under the heading ‘What we recommended’ the letter sets out the following recommendations:
- That you move to a long-term foster carer until you are at least 18 but keep seeing and having a relationship with your mum and dad at contact and in therapy.
- That you are offered therapeutic support, particularly to help you with traumatic memories and how they impact on your life and also to understand your own thoughts and feelings and those of others around you.
- That you should have contact with your mum and dad every month and contact with your grandparents every month. The social services should review this contact regularly to make sure that it is meeting your needs.
- That every attempt should be made to find you a placement which causes as little as possible disruption to the rest of your life, so that you can still attend the same school and see your friend.
- That your Mum is offered specialist therapeutic treatment.
17. The letter went on to say:
‘I am acutely aware that you have told me that you want to go back to live with your parents, but I don’t believe this is in your best interests, nor do I believe it will offer you the best opportunity to really develop as an individual, learn the skills you need for relating to other people or achieve a sense of understanding of your own mind.’
HHJ Bellamy concludes that Z has the capacity to instruct his own lawyer and his welfare would not be harmed by his having separate representation. Z’s guardian will continue to have his/her own lawyer, arguing for Z’s welfare interests.
Although it’s helpful for The Times to highlight a ‘good news story’ where children’s rights are being respected, it’s a shame they didn’t go into a little more depth about the good practce highlighred by the judge.
Image of teenage boy – thanks to pxhere.com