Can children appoint their own solicitor in family cases?

Children proceedings, whether public or private, include children of varying ages and all with different levels of understanding of the process that they are involved in. Within public children law cases which can involve children going into foster care, the Guardian appointed by CAFCAS (Child and Family Court Advisory Service) represents the child, their wishes and best interests. However, the view of the Guardian does not always align with the views of the child. In some cases a child is also entitled to appoint their own solicitor.  Sam Miles, Family Partner, explains here what a child can and cannot do during proceedings in which they are involved.

How involved should children be in proceedings?

This point was recently at the centre of a child care case involving a 16 year old girl (Re W (a child)[2016] EWCA Civ 1051). The girl (W) did not accept the judge’s findings in the case and wished to return home to her parents. W absconded from the foster home to her grandmothers, and the Local Authority applied for a recovery order to return her to foster care. During these proceedings the issue arose of whether W was competent to instruct her own solicitor. The judge refused to grant her separate representation due to her failing to demonstrate that she was not being influenced by her parents, that she did not understand the risks and she had insufficient understanding of the issues.

W appealed this decision and the appeal was allowed. Because W’s instructions differed from the Guardian’s view, it had to be determined whether she was able to give such instructions. It was held that it could be in a child’s best interests to have some direct involvement in the proceedings and her autonomy was of great importance. The following was considered:-

• The child's comprehension and capacity to give coherent instructions.
• If a psychiatric opinion is required, the child must be told the importance of keeping the assessment appointment and there are no concerns about the child's mental health.
• The fact that the child's view coincides with their parents' view does not mean that it is not their own view.
• The child's misguided view does not mean they lack sufficient understanding to give instructions.
• Disagreement with professionals about what is in their best interests does not mean a child lacks sufficient understanding.
• The risk of harm from not participating in the litigation.

When is separate child representation appropriate?

Separate child representation is highly unusual within private children proceedings. Frequently these proceedings consist of two parents who are disputing with whom the child should live with and/or when the child should have contact with the other parent. Although CAFCAS are involved in these cases, they usually prepare a report which includes safe guarding checks. The children’s wishes and feelings are not necessarily directly represented.

For very young children it can be difficult to ascertain their true wishes and feelings with regard to contact with either parent as this can differ from one day to another. However there can be an argument that children approaching senior school age may need separate representation. This may be suitable where the child has a standpoint which is inconsistent with both parents or their views and wishes are not adequately met by the CAFCAS report.  It is usually the case that the court can successfully establish a child’s wishes and feelings from the CAFCASS report alone.

“Separate representation could be appropriate where contact arrangements have broken down due to a child’s wishes and negative feelings regarding such contact and the matter needs to return to court,” concludes Sam. “There is no case law which supports separate representation arising in this situation, however the considerations contained in this recent case could be the starting point for a child with understanding to apply for separate representation.”

If you are looking for family law advice on arrangements for your children following a divorce or separation, you can contact Sam or a member of the family team on 02380 717431 or email familyenquiries@warnergoodman.co.uk.  

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.