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5SAH Family Law Newsletter: Spring 2019.

Welcome to our Spring 5SAH Family Law Team newsletter.  The newsletter features articles from our experienced family law barristers at 5 St Andrew's Hill.


The team of family law barristers at 5 St Andrew's Hill has specialist expertise in all areas of family law with a strong emphasis on practical advice, effective court advocacy and a focus at all times, on the outcome for the client.


The newsletter features the following articles:


  • Hilary Lennox: reports on the first ever successful prosecution of a FGM case.


  • Mark Smith: GM v Carmarthenshire: Can I get my kids back?


  • Sarah Fairbairn: examines the case of Re CS (A Child) – Separate representation of a child.
  Mother convicted of FGM and sentenced to eleven years' imprisonment
    Family, children & international family

The mother of a three year old girl who became the first person to be convicted of female genital mutilation offences in England and Wales has been sentenced to eleven years’ imprisonment.


This is the first time that anyone in the UK has been charged with failing to protect a person from FGM under section 3a of the Female Genital Mutilation Act 2003.


The mother was born in Uganda and has lived in the UK for a number of years. FGM is banned in both countries.


The mother (37) and father (43) were both charged with:
Count 1: Female Genital Mutilation, contrary to section 1(1) of the Female Genital Mutilation Act 2003. Both defendants on 28 August 2017 excised, or otherwise mutilated, the whole or any part of the labia minora or clitoris of the complainant.


Count 2: Failing to protect a girl from the risk of genital mutilation, contrary to section 3a of the Female Genital Mutilation Act 2003. Both defendants on 28 August 2017 had parental responsibility for the complainant, a girl under the age of 16 against whom an offence of female genital mutilation was committed.


Lynette Woodrow, of the Crown Prosecution Service, said: “We can only imagine how much pain this vulnerable young girl suffered and how terrified she was. A three-year-old has no power to resist or fight back.


“Her mother then coached her to lie to the police so she wouldn’t get caught but this ultimately failed. We will not hesitate to prosecute those who commit this sickening offence.”


The National Police Chiefs’ Council (NPCC) lead for FGM, Commander Ivan Balhatchet, said: “We have always been clear that prosecutions alone will not stop this abuse, however this guilty verdict sends a strong message that police will make every effort possible to pursue those committing this heinous crime.”


The procedure took place at her mother's home in north London, where parts of the three year old’s genitalia were cut and removed or partially removed.


The mother claimed her daughter's injuries were caused when she fell from a kitchen counter and onto an open, metal lined cupboard door. None of the medical experts who gave evidence supported that claim. The jury at the Old Bailey found that the three year old was deliberately cut and the injuries amounted to FGM.


The father was acquitted by the jury.


view Hilary's profile page
  GM v Carmarthenshire: Can I get my kids back?

It is a question often asked at the end of family care proceedings: can I get my kids back? It is a serious question and one that should be carefully considered with the benefit of legal advice. Mostyn J recently considered this issue in GM v Carmarthenshire and made some comments that will interest parents and local authorities alike.


Discharging a care order

The short answer to the title question is: “yes”. The Children Act allows for a care order to be discharged (section 39) and remarkably provides next to no guidance on when this should happen. It is purely a matter of judicial discretion. The courts have had to fill in the gap in the legislation.

Click here to read the article in full
Sarah Fairbairn
  Re CS (A Child) – Separate representation of a child


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.

View Sarah's profile page
Hilary Lennox  
Hilary specialises in international human rights and family law. Hilary is instructed to bring cases on behalf of individuals before the European Court of Human Rights most recently against Ireland. She speaks French, Spanish and Irish.  
Mark Smith  
Mark is a barrister specialising in crime, extradition, family and civil work. Mark accepts instructions in all areas of family and international family work.  
Sarah Fairbairn  
Sarah has experience in family law, appearing for both applicants and respondents in applications for non-molestation orders. Sarah also has experience of conducting disclosure hearings in relation to police material in the County Court.  
Dean Farlam  
Senior Family and Civil Clerk  
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This update is published for general guidance only and is not to be substituted for legal advice, which should be sought before taking any steps in relation to information that may be included in this notification. If you have any queries arising out of the issues raised, contact a member of our team on +44 (0) 207 332 5400. To opt-out from future communications please click here.

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