Judge was wrong to allow 14-year-old boy in care proceedings instruct own solicitor, Court of Appeal rules

The Court of Appeal has allowed a mother’s appeal against an order permitting a 14-year-old boy in care proceedings to instruct his own solicitor.

In C (Child: Ability to Instruct Solicitor) [2023] EWCA Civ 889 Lord Justice Peter Jackson concluded that the judge was “distracted by general observations about exercising caution before depriving intelligent older children of their own representation, and that it led her to overlook how extreme and effective the father's abuse has so far been”.

The Court of Appeal judge said that the appeal arose 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.

He noted that 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”.

In July 2020, the local authority issued care proceedings. Expert psychiatric advice was sought from Dr Malcolm Bourne. In a report in December 2020, he stated:

"I do take a clear view that the father is being very damaging to the children's emotional health. If the mother's description of the father as controlling during their marriage is correct, then the children would have been damaged by being exposed to that. More generally, though, his own need for his children to idolise him and disparage their mother, overwhelms A's and B's needs. A in particular presented to us, and other professionals share this experience, of someone who talks in very much an over-adult fashion, overtly or unconsciously parroting his father's beliefs and words."

Lord Justice Peter Jackson said A was then aged 12.

An interim care order was made in November 2021 and the children were placed in separate foster placements. They have remained in foster care since then.

The Court of Appeal judge noted that Dr Bourne was next asked to assess whether A, “whose views fundamentally differed from the guardian”, was competent to instruct his own solicitors.

He added: “After a full interview with A in November 2021, his report included this advice:

"Whereas I acknowledge and agree that there is bound to be some degree of influence over a child by a parent, I also believe that in this situation, the degree of influence over A by his father is extreme and damaging.

“[…] I would say that the majority of the areas under consideration outlined above lead to a view that A is not competent to instruct his own solicitor. The main arguments 'for' his doing so are his overall intelligence and his strength of feelings about this. However, I would say that his strength of feeling is at least in part based on false beliefs or premises. So although there is something of a balanced answer, I would say that the overall answer is that A is very probably not competent to instruct his own solicitor, on around a 90:10 balance."

The final hearing in the care proceedings took place before Her Honour Judge McKinnell in November and December 2021, when she heard nine days of evidence.

On 14 January 2022, the judge handed down her judgment and made care orders on the basis of care plans for both children to remain in foster care, with individual therapy for the children, for each parent and with family therapy.

Outlining the findings, Lord Justice Peter Jackson said: “In the course of a substantial judgment, the judge found that the parents' relationship had been abusive and argumentative and had been since A was born. She also found that the father had alienated the children from the mother by referring to her in derogatory terms, accusing her of lying to them and abusing them, encouraging them to act secretively, exerting influence over them to provoke them to misbehave and abscond from home, and causing A in particular to write to professionals in line with the father's wishes.”

He added: “The following findings from the 2021 judgment are directly relevant to the present appeal:

"Dr Bourne assessed both A's and B's capacity to instruct solicitors and concluded that neither of them has capacity. The children's wishes and feelings have been made clear to me in their correspondence, diary entries and by both the Guardian and Ms Gaff.

“The experts are in no doubt whatsoever that the children are parroting the father's beliefs and words. Having considered all the evidence, I entirely agree with them. It is clear and obvious. The language and phrases used by the children clearly comes from the father. They have either overhead him saying those things or he has spoken to them, using those words and phrases or he has told them what to say and write. The language, phrases and words do not all come from 11 and 13 year old children.”

Lord Justice Peter Jackson noted that in relation to the issue of competency to instruct solicitors, the judge “entirely accepted Dr Bourne's analysis” and concluded that “Neither of them has the level of emotional maturity needed to instruct their own solicitors. They do not understand how the court process works.”

On 30 May 2022, the mother issued an application to discharge the care orders. The father did the same on 25 June 2022. A different guardian was appointed, and he reinstructed Ms Gaff.

Dr Bourne was re-instructed to consider A's competence to instruct a solicitor directly. He again concluded that A was not competent to instruct his own solicitor.

The Court of Appeal judge noted that “it had been the intention for the judge to meet the children during the original care proceedings, but this became unsuitable following their recent removal into foster care.”

During these discharge proceedings, the judge met the children separately on 8 March 2023.

Lord Justice Peter Jackson then outlined two matters surrounding the meeting.

He said: “The first is that, shortly before A met the judge, Ms Gaff told him that B had taken part in an important family event the week before, involving the mother but without the father or A being aware. A referred to this when meeting the judge.”

He continued: “The other matter concerns this exchange:

"J – Are you glad you came to see me or has it not been good? You can be honest. I won't mind.

A - I am not sure what has been clarified.

J – For me, it's always better to see somebody if they want to see me. I am not taking evidence but there will be bits of what you have said to me that will stick with me. I will certainly remember how tall you are and how mature you are. I know that families and lives are not frozen in time. Things happen and things move on. It does not stand still. I hope that there is less of a whirlwind and that it is easier to find a way through. It's a bit like being in a sandstorm. If you are in a sandstorm, you can't see where you are going. Where we have got to now is better than where you were before. But it's not simple. It's important that your voice is heard. It has been helpful for me to see you. It is not necessary that I see every child. I don't need to see every single child. But I think it helps me.

A – To continue your analogy about a sandstorm, I want to give you goggles and a compass.

J – You really are mature. That's very clever."

On 4 May 2023, Ms Gaff made an application for an order for separate representation for A. The application came before the judge on 24 May 2023 at a hearing that began at 2.30 pm and finished at 6.15 pm.

The judge then gave an ex tempore judgment allowing A to instruct his own solicitor.

Within this, she summarised her impressions of A:

“I was struck by his maturity, by his ability to maintain a calm presentation, particularly when I am told now (and I had not appreciated it at the time) that he had, just minutes before, learnt about the event that his sister had had arranged for her, which he had not been told about or invited to. […] That news, I know, was devastating for him… But he was composed. He was articulate. He was mature and he is clearly intelligent.

“There was a particular part of the conversation I had with him, which I think related to a compass […], which made it absolutely clear to me that, whatever the thoughts are about whether the father has influenced A or not in the past, and I have made findings in relation to that, the conversation he had with me and the matters which he responded to me about were entirely from him. It was a dynamic conversation. He did not have an earpiece into which the father was speaking to him. He responded to an analogy and I thought that what he said was very mature, very intelligent and very insightful.”

She continued: “He feels very strongly is that his voice is not being heard. That is something that the court has to take very seriously when that is what a 14, nearly 15, year old mature young person is saying."

Giving her decision, Her Honour Judge McKinnell said: “I am satisfied that the risk of harm is higher if [A] is not afforded separate representation. He does have a clear understanding of the issues in this case. He might not agree with the professionals, but that is not a reason to refuse him separate representation. The decisions to be made are extremely important in relation to his future. He is nearly 15 and, as I say, I consider him to be a mature, reflective (to some extent), but an intelligent young man and I consider that the time has now come for him to be separately represented.”

Lord Justice Peter Jackson said the mother, supported by the local authority, advanced the following grounds of appeal against the judge’s decision:

1) Error in the judge relying, or overly relying, on her own evaluation of A from meeting him.

2) Procedural unfairness in the judge relying on her own evaluation without the parties being aware of it until after she made her decision.

3) Error in placing insufficient weight on the clear conclusions of Dr Bourne;

4) Error in giving insufficient consideration of the extent to which A had been alienated by the father and the impact of this on the sufficiency of his understanding.

5) Error in giving insufficient consideration to the consequences for B of separate representation for A.

Lord Justice Peter Jackson said that on behalf of the mother, counsel argued that the judge's meeting with A took on “an improper role”.

“The meeting was not for the purpose of obtaining information about the issue of separate representation, but the judge placed major significance on it, seen in eleven paragraphs spread throughout the judgment”, it was submitted.

Applying relevant guidelines on ‘children meeting judges’ to the present appeal, the Court of Appeal judge said: “This was an evaluative case management decision (albeit an important one) by a judge who was thoroughly immersed in the affairs of this family. A decision of that kind is entitled to the very widest degree of latitude on appeal. I have nevertheless concluded, with real reluctance, that the decision that A has the ability to instruct a solicitor directly was wrong in the distinctive circumstances of this case.”

He added: “The starting point is that the context for the decision is contained in the judgment in January 2022. […] At that time, the judge clearly identified the risk from the father and the compelling reasons why A, then aged 13, did not have the ability to instruct his own solicitor”.

He noted that the judge's doubts about the father's ability to change his approach were “well-founded”.

Lord Justice Peter Jackson then asked the question: “How, then, did the judge come to reach the opposite conclusion?”

He said: “The answer clearly lies in her response to the meeting with A. As to that, there were in my view three errors of approach.”

Outlining the three errors of approach, Lord Justice Peter Jackson said: “First, it was the judge's role to adjudicate, not to assess, but she made her own assessment of A's ability to instruct in a manner that went well beyond the permissible use of a meeting of this kind.

“Second, and more substantively, the reasons given by the judge for her assessment are not sustainable. This can most conveniently be illustrated by reference to the judge's image of the sandstorm, where A's response obviously made an impression. Further thought would have shown that it was in fact a vivid sign of A's lack of understanding. His proposal that it is the judge, and not he himself, who needs goggles and a compass encapsulates his lack of insight and his blanket rejection of her assessment of what has happened in this family.

“Third, the judge described A as very mature and very insightful, while the evidence from two psychiatrists was that he is emotionally immature and lacking insight. Since September 2021, Dr Bourne had repeatedly advised that A has 'absorbed' his father's damaging belief system and that this was more insidious and far-reaching than mere 'parroting'. The judge nevertheless preferred her personal assessment that A has 'his own clear views'.”

Lord Justice Peter Jackson concluded that the children “have been the victim of severe alienation of a kind that should have led the judge to firmly reject the application for A to be allowed to instruct a solicitor directly, for all the reasons she gave when making these care orders”.

He allowed the grounds of appeal and discharged the order permitting A to instruct his own solicitor.

In his final remarks, he said: “Despite the detour that the case has taken, there is no reason why the judge should not continue to have conduct of the proceedings and every reason why she should: none of the parties suggested otherwise. I express the hope that there will now be an early resolution of the discharge applications, as these children have been the subject of proceedings of one kind or another almost continuously since 2019.”

Lady Justice Elisabeth Laing and Lord Justice William Davis both agreed.

Lottie Winson