When can a child instruct a solicitor without a children’s guardian, or contrary to the views of a children’s guardian? Is it the solicitor or the court who decides whether a child has sufficient understanding to instruct a solicitor? How is the sufficiency of a child’s understanding assessed? These questions were addressed by Williams J in the recent High Court case of Re CS (A Child) (Appeal FPR 16.5: Sufficiency of Child’s Understanding).
When can a child instruct a solicitor without a children’s guardian?
According to FPR 16.6(3), a child may conduct proceedings without a children’s guardian if the child obtains the court’s permission or a solicitor considers the child is able, having regard to the child’s understanding, to give instructions in relation to the proceedings.
If proceedings have yet to begin, or if the solicitor is already acting, then the solicitor can accept instructions. However, if proceedings have already begun with a guardian appointed, the child must apply to the court for permission to instruct separately from the guardian before a solicitor has locus to act. The court must decide whether the child has “sufficient understanding” to conduct the proceedings without a guardian.
In Re CS, Williams J ruled that an appeal was a continuation of existing proceedings and, as such, the court’s permission was required to remove the guardian and for a new solicitor to act.
Is it the solicitor or the court who decides whether a child has sufficient understanding to instruct a solicitor?
The drafting of FPR 16.6(3) suggests that in cases where proceedings have not begun, the solicitor alone, with no endorsement from the court, can decide whether a child has sufficient understanding to conduct proceedings.
However, despite this drafting, Williams J concluded, “It seems clear to me that it is in the best interests of a child that the court remain the ultimate arbiter of whether the child has understanding or sufficient understanding to act without a Guardian”.
As such, although the FPR is drafted in a way which appears to draw a distinction between proceedings which have not yet commenced and proceedings which have commenced, the judge remains the ultimate arbiter in both scenarios.
How is the sufficiency of a child’s understanding assessed?
Assessing the sufficiency of a child’s understanding can be a difficult exercise. It is clear that age is just one factor to consider and there is no judicially-set age limit whereby a child gains sufficient understanding.
Following a careful assessment of the case law, and in particular noting the “sea change in attitudes over the years towards children’s participation in proceedings and the autonomy of consequential rights of children,” Williams J identified seven factors which should be considered when assessing a child’s understanding:
1. The level of intelligence of the child;
2. The emotional maturity of the child;
3. Issues arising from the child’s emotional, psychological, psychiatric or emotional state;
4. Their reasons for wishing to instruct a solicitor directly and the strength of feeling accompanying the wish to play a direct role;
5. Their understanding of the issues in the case and desired outcome, including whether this is authentically their own view or parroting of one parent’s position;
6. Their understanding of the process of litigation, including the function of their lawyer, the role of the judge, the role they might play, the law that is applied and the consequences of litigation; and
7. The court’s assessment of the risk of harm to the child of direct participation, balanced against the risk of harm arising from excluding the child from direct participation.
In some cases, expert evidence will be required to assist in making an assessment. The evaluation of the seven factors is “more an art than a science and the weight to be given to each component cannot be arithmetically totted up.”
Williams J’s judgment in Re CS has not changed the law. Instead, it helpfully consolidates and clarifies existing law and identifies the relevant factors to be considered when assessing a child’s understanding.
The days of assuming a child cannot have sufficient understanding to conduct proceedings alone are long gone. Where a child expresses a wish to participate directly in proceedings, judges and solicitors are faced with a balancing exercise which must be conducted with careful attention to the individual circumstances of the child.