Rebecca Davies represented the local authority in its support of a mother’s successful appeal against an order granting her 14-year-old son separate direct legal representation. Findings of severe parental alienation had been made during previous care proceedings.
The Court of Appeal case highlights issues about:
- the ability/competence of a child to instruct a solicitor directly
- improper use of judicial meetings
- the difficult balance which has to be struck in such cases.
- the need for contrasting roles of judges and experts within proceedings, and
- how a judge’s non-acceptance of an expert opinion should be addressed.
Background to the appeal
This appeal arises from an order allowing A, a 14-year-old boy, to instruct his own solicitor in proceedings brought by his parents to discharge care orders in respect of A and his sister B, who is 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.
The parents married in 2006 and separated in January 2019. Communications deteriorated after the separation and private law proceedings began. The mother obtained a non-molestation order in early 2020 and reduced the father’s contact.
On several occasions the children ran away to their father. The local authority became involved and issued care proceedings in July 2020.
During the care proceedings, the expert psychiatric report found ‘the father is being very damaging to the children’s emotional health’.
However, subsequently in the proceedings to discharge the care orders, the judge had met A. In contrast to the expert psychiatric opinion, the judge concluded that A was able to instruct a solicitor directly.
Legal points raised by the appeal
The Court of Appeal considered children instructing solicitors and Article 12 of the UN Convention on the Rights of the Child, s.41 (1) Children Act 1989 and Part 16 of the Family Procedure Rules 2010 and Practice Direction 16A.
LJ Jackson also discussed the Guidelines for Judges Meeting Children who are Subject to Family Proceedings and cases such as Re N-A (Children) [2017] EWCA Civ 230 and B v P (Hague Convention - Children's Objections) [2017] EWHC 3577 (Fam), [2018] 1 WLR 3657.
The appeal was allowed.
Read the judgment in C (Child: Ability to Instruct Solicitor) [2023] EWCA Civ 889