This month, the case digests have been taken from Lexis PSL.
Re C (a child) (ability to instruct solicitor) [2023] EWCA Civ 889
The Court of Appeal, Civil Division, allowed an appeal by the mother from a decision to allow her 14-year-old son, A, to have separate representation in proceedings brought by the mother and father (his parents) to discharge care orders in respect of him and his sister B, who was 13. The care orders had been made to protect the children from parental conflict and from behaviour by the father that had severely alienated them from their mother. Prior to the decision the judge had met with A. The Court clarified that the ‘The Guidelines for Judges Meeting Children who were Subject to Family Proceedings’, issued by the Family Justice Council and Sir Nicholas Wall P in April 2010 remained a workable framework. Nevertheless, on their application to the present case, the judge had been wrong to grant A separate representation. The grounds of appeal had been made out and the order permitting separate representation would be discharged.
Background
A, a 14-year-old boy, was allowed to instruct his own solicitor in proceedings brought by his parents to discharge care orders in respect of him and his sister B, who was 13. The care orders were made to protect the children from parental conflict and from behaviour by their father that had severely alienated them from their mother. Prior to the decision the judge had met with A. The mother appealed.
Issues and decisions
Whether A should be allowed to instruct his own solicitors. The mother, supported by the local authority, submitted that they had judge erred in:
(i) relying, or overly relying, on her own evaluation of A from meeting him;
(ii) relying on her own evaluation of A without the parties being aware of it until after she had made her decision;
(iii) placing insufficient weight on the clear conclusions of the expert; (iv) giving insufficient consideration of the extent to which A had been alienated by the father, and the impact of that on the sufficiency of his understanding; and
(v) giving insufficient consideration to the consequences for B of separate representation for A.
The ‘Guidelines for Judges Meeting Children who were Subject to Family Proceedings’, issued by the Family Justice Council and Sir Nicholas Wall P in April 2010 (the Guidance) remained a workable framework. Applications to the court for permission to appeal arising from meetings between children and judges were rare. It encouraged judges, in appropriate circumstances, to meet children as one way of helping them to feel more involved in and connected with proceedings that affect them in important ways. It made clear that the judge decided whether, when and how a meeting would take place: these decisions were very much a matter for the discretion of the individual judge in the individual case. It emphatically stressed that the meeting was not for the purpose of gathering evidence. Another critical feature was that a meeting should help the child to understand that it was the judge (and no one else) who was responsible for the decisions in the case and that the outcome was never the responsibility of the child (see [68] of the judgment).
The right approach was for the judge to give close consideration to the Guidance with its numbered guidelines when planning and taking part in a meeting with a child (see [69] of the judgment).
Finally, the Guidance affirmed that the primary purpose of the meeting was to benefit the child, but it realistically acknowledged that it might also benefit the judge and other family members. The meeting did not change the evidence, but it might illuminate certain aspects of it. There was nothing wrong with that, and provided that the judge observed the limits surrounding the meeting and the parties had a clear account of what had occurred, problems were unlikely to arise in the great majority of cases (see [70] of the judgment).
The present was an evaluative case management decision (albeit an important one) by a judge who was thoroughly immersed in the affairs of the family. A decision of that kind was entitled to the very widest degree of latitude on appeal. Nevertheless, the decision that Ahad the ability to instruct a solicitor directly was wrong in the distinctive circumstances of the case (see [72] of the judgment).
The grounds of appeal had been made good. The appeal would be allowed, and the order discharged (see [83] of the judgment).
Case report by Tara Psaila, Barrister for Lexis PSL
