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Separating from the Guardian: Welfare vs. Understanding

The role of the Children’s Guardian is to safeguard and promote the welfare of children involved in family court proceedings, by ensuring that their rights and interests are effectively represented. They tell the court, through a solicitor, what they think would be best for the child, taking into consideration their wishes and feelings, amongst other factors.

Often, there comes a point where a decision needs to be made about whether or not a child has the competence, understanding and influence to be able to instruct the solicitor directly if s/he disagrees with the recommendation the guardian is making to the court about their welfare. This would mean that the solicitor and guardian separate and the child instructs the solicitor directly to put forward their case to the court. This may be at the beginning of proceedings, later on down the line, at the request of the child or following advice from the guardian/solicitor themselves.

The case of W (A Child) [2016] EWCA Civ 1051 concerned a 16 year old’s appeal against public law orders being made on the grounds that she should have been allowed to separate from her Guardian and instruct her own solicitor. In the original proceedings, the judge had refused to grant the child separate representation on the basis that she had not been able to show the court that she had sufficient understanding of the issues at hand and that her request to conduct litigation separately was influenced by her parents. The child and her siblings had been subject to physical and emotional abuse including demeaning and humiliating punishments. They were also very heavily controlled by their father and brought up with the expectation of remaining subservient to their parents at all times.

The relevant test that was cited to establish whether or not the child should have been able to instruct solicitors directly is set out in FPR Rule 16.29(2):

If a solicitor appointed as mentioned in paragraph (1) considers, having taken into account the matters referred to in paragraph (3), that the child –

(a) wishes to give instructions which conflict with those of the children’s guardian; and
(b) is able, having regard to the child’s understanding, to give such instructions on the child’s own behalf,

the solicitor must conduct the proceedings in accordance with instructions received from the child.

Lord Justice Tomlinson summarised the error of the judge’s decision to refuse to authorise separate representation as a confusion of “welfare with understanding” in applying the test at rule 16.29(2). He concludes that the judge may have relied on welfare considerations rather than determining the question of whether the child had sufficient understanding to instruct her own solicitor. The appeal case highlighted issues that may arise where it appears that a child’s understanding is so aligned with that of their parents (indicating parental influence), that it may be concluded that they lack sufficient understanding of their own. The principle this case emphasised is that “the fact that the child’s view coincides with the parents’ view does not necessarily mean that it is not her own view”. The child should have been allowed to instruct her own solicitor and her own sense of autonomy and self-belief should have been upheld.

Novlet Levy
Trainee Solicitor

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