Separate representation of a child – a thorny problem

It is well-established that in care proceedings, if a child is capable of instructing a solicitor and disagrees with the recommendations or conclusions of the Guardian that they can be separately represented, and have their own lawyer, who takes instructions directly from them.

You don’t get many cases which describe what happens where there is a disagreement about whether the child SHOULD be separately represented  (in my experience, when the child’s solicitor says that the child has capacity and disagrees with the Guardian, it is accepted by everyone and the Court that the Child should be separately represented)

So this is a case where there was such a dispute, and the Court gave a decision, and also summed up some useful guidance. It is a CJ decision, so NOT BINDING, just informative.

Re Z (A Child – care proceedings – separate representation) 2018

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B57.html

First things first. It was VERY very clear that the child was extremely bright. He wrote a letter to the Court setting out a table of balancing factors in the case (a task which is beyond many of the other stakeholders in the family Courts…) and he absolutely had intellectual capacity to instruct a solicitor.  One of the barristers instructed in the case described the child as having a ‘fierce, analytical intelligence’ and that seems to me absolutely on the nose.

20. To assist the experts, Z prepared a detailed ten-page statement setting out his account of what has happened in the past and his wishes and feelings so far as concerns his future.
21. The first point to make about this letter is that it bears eloquent testimony to this young man’s considerable intellect. The quality of his writing and of his arguments suggest a maturity beyond his years.
22. In his letter Z describes the years of abuse he suffered whilst in the care of his parents and the domestic abuse he observed between his parents. He talks about the impact all of this has had upon him, especially upon his emotional well-being. He says he finds it very difficult to understand his emotions and deal with them. He has self-harmed and explains why. He describes his mother’s mental health problems and the impact they have had on him. He says that he vividly remembers ‘trying to stop my mum from killing herself’.
23. In his letter, Z makes it clear that the outcome he seeks is to return to the care of his parents whom he forgives for the past. He does not believe there would be a risk of further abuse if he returns home. Adopting a balance sheet approach, he analyses what he considers to be the risks and benefits of returning home. He adopts the same approach to analyse the risks and benefits of remaining with his grandparents. Finally, again adopting the same balance sheet approach, he analyses the risks and positives of him remaining either in long-term foster care or in a residential placement. So far as this last option is concerned, he argues that there are no positives. On the contrary, such a placement would damage both his mental health and his education. That could make him suicidal. He says he would run away from home.

It was also very clear that he disagreed with the Guardian and had his own case to run.

24. Z has also written a much briefer letter to the guardian and to his solicitor, Kerry Boyes. He makes the same key points made in his letter to the experts. This, though, is a more emotional letter. He says,

‘I would like it to be known that I am going to do absolutely everything in my power to make sure that these recommendations do not happen and that I hopefully move back to my parents. If not then I stay with my grandparents…Because of the present situation, I am going to obtain proper legal advice as to what I should do next. I am going to fight to get back to my parents’ care, no matter what. Every child deserves the chance to get a proper education, feel safe and secure and feel loved and cared for. Therefore, I would think it is your duty to properly review these recommendations based upon this and really think about what is in my best interests. Is it really a good idea to take me kicking and screaming away from my grandparents’ house and into a house full of strangers.’

25. After these letters, on 5 ^th June Z wrote a letter to me. In his letter he pleads not to be ‘kidnapped’ into foster care. If the court approves a placement in foster care or residential care, Z says,

‘I would categorically refuse to go. I would not get into the car…I would run away back to my grandparents as many times as would be needed for people to listen to me. Foster care or residential care is not the right environment for me to be in.’

26. Z is particularly concerned about the possibility that a move into long-term foster care or residential care would mean that he would need to change school. He says that,

‘By moving my school, you would destroy my only support network. At school…I have the support of teachers, who at times have become like second parents, and what’s more, it is one of the only places that I can be truly happy…if you forced me to move school it would do catastrophic damage to me both emotionally, socially and developmentally.’

That seems, therefore, to meet the two criteria for separate representation.

The argument was whether Z had the emotional capacity to instruct a solicitor and be involved in the proceedings, and what caused particular anxiety was him having unfettered access to the court documents and papers.  I haven’t seen this argument being run, so it is interesting to see how it plays out.

The Judge, His Honour Judge Bellamy, set out the principles that he had derived from statute and authorities. (Selfishly, I think it is a shame that they are not annotated to show where each principle is derived from, but you can’t have everything)

(I have put some particular interesting elements in red for emphasis)

32. In deciding whether Z has sufficient understanding to instruct his solicitor directly, the solicitor (or the judge if the issue is being decided by the court) will find guidance given by senior judges in previous cases. In particular, the solicitor must have in mind:

(1)           that the child has the right to express his views freely in all matters affecting him and the right to be heard in any judicial proceedings affecting him;

(2)           that the child has the right to respect for his private and family life;

(3)           that the decision to be made relates to this child;

(4)           that the fact that the child’s views are considered to be misguided in some way does not necessarily mean the child does not have sufficient understanding to instruct a solicitor;

(5)           that the fact that the child is unwilling to accept findings already made by the court does not mean that he does not have sufficient understanding to instruct his solicitor;

(6)           that the fact that a child disagrees with an independent professional assessment of what is good for him is not sufficient to lead to a conclusion that the child lacks sufficient understanding to instruct his solicitor;

(7)           that whether the child has the capacity to instruct his solicitor will depend, in part, upon the issues involved and the child’s capacity to give reasonable and consistent instructions on those issues;

(8)           that the child’s direct participation may pose a risk of harm to him and, if it does, the solicitor must consider whether the child is capable of understanding that risk;

(9)           that a child’s understanding increases with the passage of time;

(10)       that a child’s age is not the only relevant consideration;

(11)       that not allowing the child to participate directly in the proceedings by instructing his solicitor may itself cause the child emotional harm;

33. If the solicitor decides that the child does not have sufficient understanding to instruct his solicitor direct, the court can be asked to review that decision. The judge will come to his own independent decision after taking into account the points just made.

Those bits in red are important – a person or young person can have capacity to instruct a solicitor and tell them what to fight for without having to be dispassionate or reasoned – you can make an emotional decision rather than a coldly logical one, as long as you have the capacity to understand the facts and that there are pros and cons to your decision. Just as a parent can decide not to follow their legal advice and to instruct their lawyer to present a different case (including one that their lawyer considers is foolish), so can a young person.

At the actual hearing, none of the parties were supporting Z being made a party. The LA and Guardian were against it, and the parents were essentially neutral – seeing that Z had capacity but being worried about the emotional impact on him.

The conclusions – red is mine for emphasis.

39. All three parties accept that if the test to be applied were based solely on intellectual capacity then Z should be given permission to instruct his own solicitor. All three parties express concern about Z’s emotional capacity to be able to instruct his own solicitor and about what they perceive to be the risks of allowing him to do so. All three raise a particular concern about the likely harmful impact on Z’s emotional well-being of him having access to the court documents.
40. Z clearly has the intellectual capacity necessary to give him the ‘understanding’ required by the rules, though I accept that intellectual capacity is not the only relevant factor the court must consider when deciding whether a child should be allowed to instruct his own solicitor.
41. Z well understands that the ultimate welfare decision which the court must make is a decision that may have a profound impact on the future direction of his life. However, the reality is that even with the help of the best professional guidance available (and that is the position I am in) neither the professionals who give that advice nor the court can be absolutely certain of the impact decision-making today will have on the future course of Z’s life. Making decisions about Z’s future involves an element of risk. Z is as aware of the reality of that as I am.
42. In making decisions the court will have in mind the approach required by the law that Z’s welfare must be the court’s paramount consideration. The court will also have in mind that Z has the right to respect for his private and family life
43. Concern has been expressed in the experts’ report that Z’s wish to instruct a solicitor direct ‘is part of his bid to regain control in a system populated by adults he does not fully trust to represent his needs’. In my judgment the fact that an intelligent, articulate teenager wishes to have some control of decision-making that could have a profound effect on the future course of his life is hardly surprising. Z is astute enough to realise that as matters stand at the moment, although his Children’s Guardian will faithfully represent his views to the court she will also set out her own assessment of what the appropriate welfare outcome should be. She will make it plain that she does not agree that Z’s clearly expressed wishes and feelings accord with his best interests. She is likely, therefore, to recommend to the court that Z’s wishes and feelings should not be followed. Currently, Z does not have an advocate who will not only inform the court of his wishes and feelings but will seek to persuade the court that an outcome that accords with his wishes and feelings will meet his best welfare interests.
44. One of the reasons why the experts do not agree that Z should be able to instruct his solicitor direct is because ‘it is our assessment that Z is profoundly confused about his own mind and about his best interest’. In my experience, that confusion and uncertainty is experienced by many adolescents who are the subject of care proceedings. I am doubtful that that is a factor which should be considered, of itself, to make it inappropriate for that young person to be given permission to instruct his own solicitor. In this case, I accept that Z himself has said that he finds it very difficult to understand his emotions and deal with them. In my judgment, that does not mean that he lacks the emotional ‘understanding’ to instruct his solicitor. On the contrary, it could be said that the fact that Z recognises his emotional challenges means that he would be able to engage in an open discussion with his solicitor about the case he wishes to put before the court.
45. All three parties express concern about Z having access to court papers in the event that he is allowed to instruct his own solicitor. In my judgment, that concern is misconceived. Z is already a party. The decision I am called upon to make has nothing to do with the issue of party status. As a party, the rules already give him a conditional right to have access to the papers. As I noted earlier, the rules require the guardian to advise the child of the contents of any document received so long as the guardian is satisfied that the child has ‘sufficient understanding’. Whether the child should be allowed to see a particular document or simply be given a summary of that document is, for understandable reasons, a matter that is left to the discretion of the guardian. The rules impose a similar duty on the solicitor. In my judgment, that duty arises whether the solicitor receives his instructions through the guardian or direct from the child. In each case the solicitor is not under a duty to allow the child to see documents that have been served upon him but, rather, ‘if the child is of sufficient understanding [to] advise the child of the contents of any documents’ received. It is for the solicitor to come to a judgment about whether the child has ‘sufficient understanding’. If the solicitor is uncertain whether the child has ‘sufficient understanding’ and whether the child should be allowed to read a document or simply be given a summary of the contents of that document, the solicitor should seek guidance from the court. The ultimate responsibility for deciding whether a child or young person should have access to the court papers is, always, that of the court.
46. As I noted earlier, in this case the experts have prepared for Z an excellent age-appropriate summary of its report. The authors are of the opinion that it would be detrimental to Z’s welfare for him to be allowed to read the full report. For the reasons I have already given, in my judgment, if the court were to allow Z to instruct his solicitor direct it does not follow, as a matter of law, that Z then becomes entitled to unfettered access to all of the documents placed before the court. Deciding precisely what Z should be allowed to see is a matter for the exercise of discretion and is a decision in which some regard must be had to his welfare.
47. Mr Johal expresses concern ‘about the risk of full participation’ by Z. He submits that Z lacks the insight to fully appreciate the risks of participation. The risks he refers to are the risk arising from access to the court papers (to which I have just referred) and the risk that participation ‘has the potential to significantly contribute to Z’s documented emotional and psychological difficulties and limit the future success of any therapeutic treatment.’ He does not set out in what way there is a risk to the future of any therapeutic treatment. Z has made it very clear that he is willing to engage in therapy. I do not read the experts’ report as highlighting such a risk.
48. Set against those risks, the decisions made by senior judges, to which I referred earlier, highlight the risk of emotional harm being caused to a young person by not allowing him to participate more fully by means of having his own solicitor. In this case, Z is very concerned indeed to ensure that his voice is heard and, in particular, to ensure that his wishes and feelings about his education are understood and respected. I am in no doubt that if he were not allowed to have his own solicitor there is a real risk that that decision would cause him emotional harm.

Conclusion

49. I have come to the conclusion that in this case Z does have the ‘understanding’ required by the rules to enable him to instruct his own solicitor. There are no sufficient welfare reasons why that should not happen. I shall therefore order that Z has permission to instruct his own solicitor. It is important that the solicitor appointed is appropriately experienced and skilled for the task in hand. That is an issue I will return to when judgment is formally handed down.

A lot of useful content there, particularly for Guardians and children’s Solicitors.