This lengthy judgment (82 paragraphs) from Peter Jackson LJ should prove invaluable as a summary of the law and guidance on children’s competence to instruct their own lawyers. It is also useful in considering communication directly between children and judges. The facts in Re C (A Child: Ability to instruct a solicitor) [2023] EWCA 889 (Civ) are extreme; the case had escalated into care proceedings and orders. However, the principles of children’s rights and interests as set out in the judgment can be more widely applied in private law disputes.

There is a helpful summary of the facts and outcome in this post at Legal Futures. There are two children: A, now aged 14 and B, now aged 13. Proceedings have been going on since 2019 and, in 2021, both children were placed in separate foster placements, subject to care orders made on the basis of significant harm caused by threats and actions of their father, and because the children were beyond the control of their mother.

This appeal by the mother arose from a more recent decision by HHJ McKinnell in May this year to allow the older child, A, to instruct his own solicitor after the parents each applied to discharge the care orders and also for contact orders. The family court has powers to allow separate representation in a situation where an older child is expressing different views about their own wishes and feelings than the view put forward by the Cafcass guardian on their best interests. In a nutshell, here, all the social work and psychology and psychiatric professionals gave evidence of the risks posed to the children by their father. However, A told his solicitor (appointed by the guardian) that he did not agree with the plans being made for him and wanted to see the court papers to put forward his own case. A’s solicitor appears to have made every effort to fairly submit his views on this point.

Although the Court of Appeal decided that the judge had been wrong in allowing the application for separate representation, the case as a whole (the discharge and contact applications) are returning to her – there is no judicial criticism  The judgment in May was not published, but there are quotes from some passages in this Court of Appeal judgment. The earlier judgment by HHJ McKinnell from 2021 is on BAILII – Re A and B (Parental alienation by the non-resident parent) [2021] EWFC B8 (210 paragraphs plus three appendices).

The situation as at early July was that A and B continued to live in foster care. The mother having been given leave to appeal HHJ McKinnell’s May judgment, A has never had his own lawyer. He will continue to be represented by the guardian (regarding his welfare) and the same lawyer in the discharge of care order and contact proceedings.

In this post, we will consider the rights of children to participate in decisions being made about them. A request by A for separate representation was turned down by the judge in 2021 but allowed in 2023. The Court of Appeal believe that the judge reconsidered the position largely in light of meeting A, although as mentioned above, his solicitor was conscientious in her legal submissions on his behalf.

A’s competence to instruct a solicitor – 2021

In the 2021 judgment, HHJ McKinnell asked herself: Are either of the children competent to instruct their own solicitors? And went on to answer as follows:

I find that they are not. Neither of them has the level of emotional maturity needed to instruct their own solicitors. They do not understand how the court process works. They are solely focused on their wishes and feelings and do not understand that those wishes and feelings are part of the overall picture and have been communicated loud and clear to the Court. They do not understand that their wishes and feelings may not be the same as what is best for them. I accept Dr Bourne’s [psychiatric] assessment on this issue.

Both of the children are heavily influenced by the father. They cannot think for themselves. Their views, wishes and feelings have been influenced and distorted by the father. The children have been properly represented by the Guardian and by Ms Gaff [solicitor]. The Guardian and Ms Gaff have both informed the court about the children’s wishes and feelings. The Court is in no doubt whatsoever about the children’s wishes and feelings. There is nothing more that the Court could be told that it does not already know about the children’s wishes and feelings. The father accepted that in his oral evidence. Instructing another solicitor would have added nothing. It would not have given the children what they want because what they want is clearly not in their best interests. Neither of the children is competent to instruct their own solicitors. Even if they were, the outcome would be the same. Giving the children what they want is not the same as giving the children what they need. [paras 178-9]

With regard to the psychiatric evidence the judge had said:

Dr Bourne’s independent reports on A’s and B’s competency to instruct solicitors are evidence based, reasoned and clear. He clearly researched the relevant questions and approached the assessment with an open mind and with knowledge of the children and the family dynamics. I have no hesitation in accepting them. Dr Bourne’s evidence was that A’s emotional maturity was not higher than expected for a child of A’s age and it was compromised by the influence of the father. Dr Bourne was concerned by A’s insistence that it would not be a problem if A had access to the full bundle. He said that there was something about A’s general narrative that deviated so far from reality that it indicated that it was compromised. B was clearly not competent. B was confused, withdrawn and in an emotional mess. Dr Bourne was struck by the clarity in what B said about contact (repeating the father’s words) compared with B’s confusion about other matters. Dr Bourne’s view was that neither of the children’s executive functioning was developed. If A instructed A’s own solicitor but did not get what A wants, it would be more damaging for A because whilst A would get the power, A would not get the result. If A does not get the result, A will say that the Court is wrong and will adopt the father’s attitude. Dr Bourne considered that to be more harmful to A. It was important that A got the message that it was for the adult professionals to make decisions in A’s best interests. [para 62]

In the Court of Appeal judgment, further details of Dr Bourne’s report are quoted [at para 5]. In it, he had also written:

I think that A understands well enough the ‘facts’ of the process of litigation including the function of the lawyer, judge and Guardian and his role with those. I do not believe that A has a good appreciation of the potential consequences of his involvement in litigation. He essentially saw no risk of difficulty or emotional harm from hearing about, for example, his family members, in the court environment, or reading about them – he said he had asked for my report, for instance. Whereas I appreciate that instructing his own solicitor would not necessarily mean he would have unfettered access to reports and papers, his lack of such understanding is of concern in the key issue for this report.

In January 2022, the judge wrote to the children to explain her decision about care orders at the end of 2021. The letter is appended to the judgment. In it, she says:

You have wanted me to know what your wishes and feelings are. I promise you that I know what they are. Several people, including [the Guardian], Ms Gaff, your mother and your father, have told me what they are. You have also told me what they are through your emails A, your diary B and through your “How it looks to me” Cafcass documents (I read them both). At this hearing, your father told me that I know everything there is to know about your wishes and feelings. I have listened to them and taken them into account and I have listened to you through others. Your voices have been heard.

It is important for you to understand that because you are still children, it is not fair or right for you to be making decisions that have really important lifelong consequences for you. That is why adults have to take responsibility for those decisions. You probably know that what a child wants is not always what a child needs. My job is to look at what you need and what is best for you. I have to decide what is best for you even if that is not what you want.

In her judgment, HHJ McKinnell mentions that she had intended to meet the children but events somehow stopped that happening so instead she wrote the letter. She said at para 15:

This judgment does require detail. I have written it in terms that the children will be able to understand when they are older. It will be for the Local Authority, in consultation with the children’s therapists, to decide when that will be. I have written a letter to the children for them to read now. It was agreed that Ms Gill [psychologist] would read my draft letter to the children before it is given to them. I will consider any suggested amendments from the advocates and Ms Gill to assist the children. The draft letter is attached to this judgment marked “Attachment No.1”. I make it clear that the mother and the father must not show the children a copy of this judgment or share its contents with them until the Local Authority (in consultation with the therapists) consider it appropriate. The children, particularly A, already know far too much about these proceedings and far more than it is healthy for them to know. It is clear to me that the father is responsible for most of the children’s difficulties, their broken relationship with the mother and the psychological harm they have suffered and continue to suffer. The father does not agree. He blames the mother, the social worker and the Court. He is pitted against everyone and he has drawn the children into his feeling and belief that it is him and the children against the rest of the world. He is unable to see the harm he is causing to the children and how distorted his view is. [Emphasis in the original]

It is clear here and throughout the judgments that everyone has concerns about A having already seen court documents that were likely to cause him emotional harm.

The letter also explains to the children that everyone wanted the family to be rebuilt and how the plans for therapy would work. The judge wrote to the children that the case was at an end. Sadly, it wasn’t. The therapy didn’t happen; the father began having unauthorised contact with the children; he breached a non-molestation order and spent two weeks in custody; and he self-published a book about ‘Monstrous Family Courts’ that included personal information about the children, foster carers etc. (The book was removed by Amazon following injunctions).

Why did the judge change her mind 18 months later and decide that A should have his own lawyer?

Dr Matthew Bourne, psychiatrist, was re-instructed in September 2022 to give his view on A’s competence to instruct a solicitor. He advised against this, possibly even more strongly than before. A’s understanding of the consequences of instructing his own solicitor was flawed to the extent that he would suffer emotional damage from being assigned too much responsibility.

In March 2023, the judge met each of the children. It’s not entirely clear why a meeting was now appropriate when it hadn’t been arranged at the conclusion of the care proceedings, but some matters must have settled down. The Court of Appeal was assisted by the children’s solicitor making a very detailed note of these meetings when they did occur. The judge, rightly, made it clear to A that she was not taking evidence from him. The lawyer’s note and a subsequent written complaint by A were both sent to Dr Bourne who repeated that the ‘balance of harm’ still came down against A being separately represented.

The Court of Appeal describes the circumstances of the hearing in May 2023 as ‘sub optimal’, with the judge having been given a 2000-page bundle and various statements to read on the actual day of the hearing amidst a full list. This deprived her of the opportunity for full reflection, in their view [para 28].

The Court of Appeal [para 33] sets out the judge’s conclusion, which begins:

I consider that at this stage the answer is pretty clear. I am satisfied and find that A does need separate representation. I was unsure about that before I met with him earlier this year. Having met with him on 8 March 2023, as I say, I was surprised at just how articulate, intelligent and mature he is.

Allowing the mother’s appeal, Peter Jackson LJ says:

I consider that the judge was distracted by general observations about exercising caution before depriving intelligent older children of their own representation, and that it led her to overlook how extreme and effective the father’s abuse has so far been. This is not a case where A had his own solicitor in the previous proceedings, as in Re W. Nor is it a case where a child has formed an unwise view of their own, even if it might be coloured by adult influence. Instead, these children have been the victim of severe alienation of a kind that should have led the judge to firmly reject the application for A to be allowed to instruct a solicitor directly, for all the reasons she gave when making these care orders.

The law on competence

Peter Jackson LJ begins his analysis at para 43 with the United Nations Convention on the Rights of the Child. He then works through the Children Act 1989, the Family Procedure Rules, guidance for solicitors, and case law from 1993.  At Para 58, he concludes:

Drawing matters together, this survey of the rules and the cases shows that, 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. The guidance in Re W bears repeating:

“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.”

The assessment will be case-specific. It will not be driven by welfare factors, or by a theoretical comparison between protection and autonomy, but by a practical assessment of the child’s understanding in the particular context of the case. There are no presumptions and care will be taken not to over-value any particular feature. The consequence of a sound assessment will be that the child’s rights and interests are respected and preserved.

He also considers the guidelines and case law on children meeting judges [paras 59-71].

Peter Jackson LJ concludes ‘with real reluctance’ (because the Court of Appeal empathised with the judge having to deal with matters swiftly) that the decision was wrong, adding:

In parting from the case, I again recall the pressured circumstances in which the judge was taking her decision. There has been no complaint about the quality of what was after all an ex tempore judgment given after hours. I also recognise that she had balanced submissions from the guardian and his experienced solicitor, but their footing was no stronger than hers. It is always a professional challenge to represent an older child whose wishes conflict with a guardian’s assessment, but it was not suggested to the judge or to us that the situation was untenable, any more than it had been during the previous proceedings.

Children’s rights to participation

The Court of Appeal believe that A and his father are very unlikely to ever be satisfied by ‘any court outcome that they do not want’ [para 81]. Generally, the impression is given that A will not accept decisions made about his welfare based on the evidence before the court. Having his own lawyer may have made no difference to the outcome, but would he feel better, having exercised his rights of participation? Unfortunately the meeting with the judge, where she was impressed by his maturity, seemed to unsettle rather than reassure him.

Research does suggest that children in family court decisions do value being listened to, even where the outcome is not perfect (which it rarely can be). Applying Laura Lundy’s model of participation

Space: A was given the opportunity to ask to participate more directly than he had been under routine procedure.

Voice: A was able to express his views through the appointed solicitor.

Audience: The judge observed that everyone was aware of A’s views.

Influence: A’s views were listened to and taken seriously by professionals and the senior judiciary. We don’t know whether the reasons for the ultimate decision by the Court of Appeal were explained to A – but we can assume the guardian and the children’s solicitor continue to try.

In the meantime, the parents’ separate applications to discharge the care orders and for contact are back with HHJ McKinnell at Barnet Family Court.

Covert recording

One of the many complications in this case is the father’s self-confessed use of covert recording. At para 58 of HHK McKinnell’s 2022 judgment, she says:

Dr Bourne described how the father told him in interview that he had recorded and transcribed a meeting with the social worker and that when Dr Bourne read it, he would see the truth. The father alleged that the social worker had been untruthful. In his interview with Dr Bourne, the father said that the allocated social worker, “has an intellectual problem and is insane and a liar.”… When Dr Bourne read the transcript provided by the father, it did not support the father’s story. Dr Bourne’s evidence was that he had never come across a social worker who had falsified a whole report and the father’s evidence in support of that allegation did not support what the father alleged.

And at para 95:

I do not believe that VK [the social worker] made up his evidence about what he said happened at the father’s flat. I believed VK’s evidence that the father told him that he had over 1,200 recordings of the children with their mother and many more of professionals involved with the family. I also believe that the father told VK about his secret recording devices. The mother found a recording pen in A’s possession in April 2020 … The father was clearly trying to intimidate VK and make him feel uncomfortable. It is consistent with the father’s grandiose manner, exaggerated claims and impression management. Whether the father actually has that number of videos or not is a separate matter. I am satisfied that he told VK that he had them.

With regard to the recording the father made of the social worker’s visit, the judge concluded:

I did not believe the father’s evidence about what happened during that visit and I place no weight on the father’s transcript or recording. The father is a man who will say and do anything to get what he wants. He is not a reliable witness and I have no confidence that his transcript or recording is accurate or complete [para 168].

This has reminded us that back in December, The Transparency Project responded to a consultation by the Family Justice Council on guidance on covert recording, and that at the recent open FJC meeting, final guidance was said to be imminent. The covert recording (to whatever extent it existed in reality) did not help anyone here – and the father’s claim to have secretly recorded his children was actually itemised as one of the factors in the significant harm threshold findings.

Image of teenage boy taken from a Creative Commons internet site.