The case of
CS v SBH & Ors  EWHC 634 (Fam) (18 March 2019)
is the most complicated argument that I have read in a family law judgment that doesn’t contain the words “Brussels II” at some point. It also involves David Burrows in some capacity in the litigation, and David is an assiduous and careful legal commenter and one of the most precise human beings I’ve ever known, so that adds to my pressure in trying to simplify and clarify the decision without getting it wrong.
In case that’s prompting you to close the browser and eat some biscuits instead – it is an important decision for any solicitor representing a child, or Guardian, or a parent’s lawyer giving advice as to whether the child could be separately represented. It also involves two children’s solicitors duking it out over which of them would represent the child, which is not something I’ve ever seen before. Read on.
At essence, it was an appeal from a private law order that the child should live with the father, the child expressing that she wanted to live with the mother. The child lodged the appeal, but one of the solicitors for the child was actively opposing the appeal. (Yes, that dull pain around your temples is normal at this point)
The child had two solicitors.
One instructed by the Guardian, who considered that the child did not have capacity to instruct a solicitor (and hence could not bring this appeal properly, as the Guardian had not given instructions to lodge such an appeal)
One instructed by the child directly (and who was acting pro bono (for free) , because she was concerned that the original proposal was that the mother was funding the child’s legal fees) who considered that the child DID have capacity to give instructions, wanted to appeal the order and so the appeal should be heard.
So the first thing for the Court to work out was which of these two solicitors was actually representing the child. If the child had capacity, it would be Ms Hopkin. If the child lacked capacity, it would be Ms Coyle.
But even beyond that, the Court had to at great length decide whether an appeal was a continuation of existing proceedings or fresh proceedings.
- After all those preliminaries we were able to get onto the question of the preliminary issue. I had thought that some oral evidence from Ms Hopkin and Ms Coyle might be desired but in the event Ms Hopkin was appearing as the advocate and in any event no party wished to put questions to either Ms Coyle or Ms Hopkin and so the matter proceeded on submissions. As arguments developed this appeared to boil down to two particular issues:
- i) Firstly whether an appeal constituted new proceedings, such that the provisions of FPR 16.6 (3) applied, in which case Ms Hopkin’s opinion on whether the child was able having regard to her understanding to give instructions in relation to the appeal appeared to be determinative.
ii) Secondly if the appeal was part of a continuation of proceedings whether pursuant to FPR 16.6 (5) and (6) the court considered that the child has sufficient understanding to conduct the appeal concerned without a children’s Guardian. This involved consideration of both the law and the evidence.
- As I shall return to later this apparently clear delineation between the role of Ms Hopkin and the role of the court turns out not to be so following a deeper dive into the authorities.
(I’m pleased that it was ‘apparently clear’ to Williams J, because this caused me such pain in my cortex that I had to contemplate an MRI scan before moving on. But joy, it turns out NOT to be so ‘clear’)
In a nutshell, if the case is new proceedings, then the child instructs a solicitor Ms Hopkins, and if Ms Hopkins thinks the child can give her instructions well then what Ms Hopkins says effectively goes on capacity. But if it is a continuation of proceedings, the Court has to consider whether the child has sufficient understanding to instruct solicitors.
So is an appeal new proceedings, or a further stage in existing proceedings?
- The following matters suggest that an appeal is fresh proceedings:
- i) The appeal is made in the High Court not in the family court and is allocated a specific number. It is made by an Appellants Notice not a C2 ‘Application in existing proceedings.’
ii) Legal Aid treats proceedings with a different case number as ‘new proceedings’ and an appeal after a final order is not covered by the same certificate.
iii) Cost are dealt with separately.
- i) An application for permission to appeal may be made in either the lower court or the appeal court. This suggests the appeal process is linked as between the lower court and the appeal court.
ii) The appeal court has all the powers of the lower court (FPR 30.11)
iii) The appeal court’s powers directly affect the order made by the first instance court, including the power to vary any order or judgment, refer any application or issue for determination by the lower court, order a new hearing (FPR30.11 (2) and stay the order of the first instance court. These all suggests a direct jurisdictional connection.
iv) The appeal court’s function is identified at FPR 30.12 is reviewing the decision of the lower court unless it considers it to be in the interests of justice to hold a rehearing.
v) The appeal court powers include substituting its own decision or exercising its own discretion fresh rather than remitting the matter to the first instance court; Fallon v Fallon  1 FLR 910 CA. The court may also admit fresh evidence and may hear oral evidence.
vi) The respondents to the appeal are the other parties to the proceedings in the lower court (see FPR 30.1 (3)) and the appellant’s notice must be served on any children’s Guardian.
vii) Where a child is a party to the first instance proceedings they are automatically a party to the appeal proceedings the rules do not provide for the court to reconsider their party status or whether they will be represented by a Guardian and who will be appointed as the solicitor.
- Notwithstanding the points which point towards an appeal being separate proceedings I conclude that the factors pointing in favour of an appeal being a continuation of proceedings are far more compelling. In particular the seamless continuation of party status and the powers of the appeal court all point to an appeal being another stage of proceedings; albeit different in nature. I don’t consider that the use of an appellant’s notice, rather than a C2, shed much light on the issue. Applications in existing proceedings can also be made by the use of other forms under the part 18 procedure. Seems to me the appellant’s notice and the giving of a separate case number are administrative matters rather than affecting the substance of the proceedings. Nor do I consider the rules relating to the availability of legal aid shed much light on whether the proceedings are separate or part of a continuum. The rules applied by the Legal Aid Agency are a matter for that agency.
- For all of the reasons identified above I conclude that an appeal is a continuation of the first instance proceedings. It is another step or stage in those proceedings and thus the provisions of FPR 16.6 (5) apply.
- That being so it is for me to decide whether the child has sufficient understanding to conduct the appeal proceedings without a Guardian.
(The Court also took the view that as a result of Re CT the Court ultimately had discretion anyway, so all of that was rather academic, but at least we all now know that an appeal is a continuation of existing proceedings, not new proceedings)
In Re CT (A Minor) (Wardship: Representation)  2 FLR 278,  Fam 49,  3 WLR 602, CA Court of Appeal (Sir Thomas Bingham MR, Waite and Staughton LLJ) specifically considered the effect of the identically worded predecessor to FPR 16.6 (3) (b)(i) namely FPR 1991 9.2A (1) (b) (i). The Court of Appeal considered that taken together with FPR 1991 9.2A (10) that the court retained the ultimate right to decide whether a child required a Guardian or not. Lord Justice Waite said
‘…if the rule is to be construed according to the whole tenor of the Act and its subsidiary legislation, it must in my view be taken to reserve to the court the ultimate right to decide whether a child who comes before it as a party without a next friend or guardian has the necessary ability, having regard to his understanding, to instruct his solicitor’
Moving on then, as the Court had to decide whether the child had sufficient understanding to instruct a solicitor, what did they take into account?
- Having regard to the jurisprudence I consider that Lady Justice Black’s summary in paragraph 36 of her judgment in Re W (highlighted above) draws together much if not all of the earlier observations on the issue. What is clear is that there has been a shift away from a paternalistic approach in favour of an approach which gives significantly more weight to the autonomy of the child in the evaluation of whether they have sufficient understanding. Thus the earlier authorities need to be approached with a degree of caution in terms of the level at which they set the ‘bar’ of understanding. The autonomy issue sounds both in pure ‘understanding’ terms and in welfare terms.
- i) In assessing understanding the court is likely to attribute more weight to the child’s views of the issues and the reasons they give for wishing to be involved amongst others. The expression of a wish for an objectively ‘unwise’ (or unsound) outcome might now not undermine the evaluation of sufficient understanding in the way it might have in 1993. It is perhaps also likely to hold the child to a somewhat lower expectation of understanding of the litigation process than emerges from Booth J’s judgment cited in Re N (above) which appeared to contemplate an ability to negotiate complexities of litigation which many adults might struggle with.
ii) In so far as the welfare of the child is a primary consideration in the decision-making process (Art 3 UNCRC and Mabon suggest it is) the welfare of the child sounds both in favour of their involvement (recognising the value they may add to the process and their rights as a person significantly affected by the decision) and against (where involvement may expose them to harmful emotional consequences).
- Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including
- i) The level of intelligence of the child
ii) The emotional maturity of the child.
iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state.
iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role.
v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. Some degree of influence is a natural component of decision making but the closer to the ‘parrotting’ end of the spectrum one gets the lower the level of understanding there is likely to be. An unwise decision does not mean the child does not understand although it will no doubt depend on the extent to which the child’s view diverges from an objectively reasonable or wise decision.
vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. Care should be taken not to impose too high a level of understanding in this regard; many adults with capacity would not and we should not expect it from children. An ability to understand that their solicitor put their case but also has duties of honesty to the court, an ability to understand that the judge makes a decision based on an overall evaluation of the best interests of the child which balances many competing factors; the ability to understand that they might attend court, could give and evidence, could read documents; the ability to recognise the stress of exposure to the court process and the arguments between others. The presence of all of these would be powerful signs of a high level of understanding. Conversely the absence of them or evidence of a distorted understanding would be contra-indicators.
vii) The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm.
- Ideally the assessment would be swift and pragmatic without too deep a dive into the issues in the case and the competing analyses of the solicitors involved. In some cases, an expert assessment might be required in particular where the solicitors assessments are relatively evenly balanced or the court is otherwise unable to reach a clear view
In this case, the Court had two solicitors, both experienced at representing children, and both with competing views as to whether the child had capacity to instruct them.
- Each case must be approached on its own facts. The stage at which I am assessing the issue of sufficiency of understanding comes relatively late in these proceedings where an experienced family court circuit judge has already determined the substantive issue and made findings which are relevant to my evaluation of the sufficiency of the child’s understanding.
- The views of Ms Hopkin on the one side and Ms Coyle on the other are diametrically opposed. There is however an immediate and obvious difference between them. That is not the age and experience of the solicitor conducting the evaluation but rather the extent to which the evaluation is an informed evaluation. Ms Hopkin’s evaluation is based primarily on her meeting with the child supported by what she can glean from communications that she has had with the child or which she has been sent by the child and some other modest exposure to information. Although her evaluation has not taken place in a vacuum it is very much in a low pressure vessel in terms of the material that has been available to her to assist in the evaluation. Ms Coyle’s evaluation has been taken with exposure to the full atmosphere of information which bears upon the issue. As Ms Hopkin accepted in submissions, an initial evaluation of a child may very well have to be reassessed the light of further information that becomes available. This is far from a simple case given the history of it. Thus initial impressions almost certainly would have to be reassessed.
- Turning thus to some of the factors which I need to weigh in the balance in making my own evaluation of whether this child is of sufficient understanding to conduct the appeal without a children’s Guardian my conclusions are set out below and draw upon all that I have set out in this judgment as well as what I have read and heard.
- i) The level of intelligence of the child: she has the intelligence of or slightly above her chronological age.
ii) The emotional maturity of the child: she lacks emotional maturity, this being evidence by an inability in particular to hold a balanced view of her father or an understanding of her position.
iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state: the extent of her enmeshment with her mother and the emotional harm that she had suffered from that is likely to diminish her ability to understand the true nature of the issues.
iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role: I accept that the child has felt her voice has not been listened to or heard but that actually does not reflect the reality given that she has had a Guardian and solicitor both in the original proceedings and recently. Whilst inevitably her reasons for wanting to have a solicitor and appeal will be mixed, arising at least in part from the fact that her solicitor and Guardian did not achieve the outcome she desired I consider that it is also likely that her position has been influenced by her mother and maternal family either directly or indirectly. Although every child is of course different the fact that this child has not been in direct contact with Mr Burrows or Ms Hopkin pushing for information, seeking answers or otherwise proactively pressing her case indicates to me that her desire to have her own solicitor in Ms Hopkin and to pursue the appeal is not particularly strong. Her acceptance of the possible withdrawal of proceedings in summer 2018 is further evidence of this.
v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position: the child’s lack of a full appreciation of the reasons for living with her father in part at least arises from the fact that the issue has not been addressed in therapy although I note that the Guardian understood that the child had knowledge of the reasons but had not processed it. The child’s wish to live with her mother was accepted by the Guardian and HHJ Meston QC as a genuine one. Inevitably it is in part a product of influence (whether direct or indirect and see HHJ Pearl’s conclusion) but all our views are in part a product of influence of others views. The child’s wishes in this case are closer to the authentic end of the spectrum than the parroting end although they probably fall closer to the middle.
vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation: Ms Coyle’s analysis but also the contents of some of the child’s expressed views whether in letters or to the Guardian do not indicate much of an understanding of the court process, the functions of a solicitor, the role and function of a judge or the consequences of having a solicitor acting directly. They emerge as very simplistic and unrealistic. Although neither Ms Hopkin or Ms Coyle specifically addressed the question of the child’s understanding of the appeal process, the nature of an appeal is in many ways harder to understand than the first instance process given it is a review of the judge’s decision rather than a rehearing of the application.
vii) The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm: both the Guardian and HHJ Meston QC considered that the child would accept an outcome that was contrary to her expressed wishes. It is clear from the Guardian’s report that continued litigation is contrary to the child’s welfare. In particular the burden that it is considered that she carries to promote the mother’s position is harmful. Further involvement in litigation in this appeal or otherwise will likely be contrary to her welfare interests. Exposure to sensitive information to a child of this age and with this history will be harmful. Although her actual involvement in this appeal might be limited the process of challenging the judgment would inevitably involve detailed discussions with the child about the evidence. On the other hand, she has expressed a desire to have Ms Hopkin act for her and to appeal. This has endured since HHJ Meston QC’s adverse judgment. However it is not pressed proactively and the Guardian and Ms Coyle did not detect any real desire to appeal in any event. Thus preventing the child from engaging directly in this litigation with the effect that it would very probably bring the appeal to a juddering halt is not likely in my view to be perceived by the child as a significant insult to her autonomy as an individual.
- Giving all due weight to the child’s personal autonomy and having regard to the welfare implications of her not being able to instruct a solicitor to pursue her appeal overall and taking account of all of those matters which weigh in favour of the conclusion that she does have sufficiency of understanding I am quite clear that the factors which support the conclusion that the child does not have sufficient understanding substantially outweigh those pointing the other way. Inevitably the evaluation is more an art than a science and the weight to be given to each component cannot be arithmetically totted up. The overall impression that clearly emerges is one of a child who does not have sufficient understanding to conduct the appeal without a children’s Guardian. That is not to say that Ms Hopkin’s initial evaluation was wrong; it has to be looked at in the light of the totality of the material available. The test in FPR 16.6 (6) is not met. My conclusion would be the same as if I were considering the test under 16.6 (3) as to whether the child is able having regard to her understanding to give instructions in relation to the appeal.
The costs question is left open in the last paragraph of the judgment. The general rule is that a solicitor who acts without the authority of her client is strictly liable for the costs: Yonge v Toynbee  1 KB 215 (a harsh case: the client became incapable without the knowledge of the solicitor). Bowstead and Reynold on Agency at para 9-066 suggests that this is no longer the law where the principal becomes incapable in the course of the litigation, but in the current case the girl lacked capacity from the outset, so Ms Hoskin was never properly instructed. There must be question whether the general no-costs rule applies in family proceedings in these circumstances.
There must be scope, surely for a solicitor to hold an honest and professional opinion that the client they are seeing has capacity to instruct them. My reading of this judgment was that the nuance of the history and the influence mother had over the child was the magnetic factor. But yes, that does pose a risk to solicitors willing to take on a child’s case in other cases.
Thank you for comments at the beginning; but what a confused piece of secondary legislation FPR 2010 Pt 16 is: now it’s Black LJ (as was), HHJ Meston (‘very confusing’), Williams J and now yr learned self who all find it a mess; and we expect children who may or not be able to come to court to take it in – not good law-making….
Yes, it’s certainly unnecessarily complicated to have two differently worded tests for fundamentally the same material outcome.
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