EY (Fact-finding hearing), Re
[2023] EWCA Civ 1241
Re C (Child: Ability to Instruct Solicitor)
26 July 2023
[2023] EWCA Civ 889
Court of Appeal
A boy wanted his own lawyer in a court case about his parents. Experts said no because his dad had manipulated him. The judge met the boy and said yes, but a higher court said the judge shouldn't have met him privately to make that decision and overruled her.
Key Facts
- •A 14-year-old boy, A, sought to instruct his own solicitor in proceedings concerning care orders for him and his 13-year-old sister, B.
- •Care orders were initially made due to parental conflict and the father's alienating behaviour towards the mother.
- •Expert psychiatric reports from Dr. Bourne consistently advised against A instructing his own solicitor due to the father's significant influence and A's lack of independent understanding.
- •The judge met with A separately, a meeting which significantly influenced her decision.
- •The judge's decision to allow A to instruct his own solicitor was appealed.
- •The father was convicted of breaching a non-molestation order and a book containing personal information about the case was published in A's name.
Legal Principles
Children have the right to express their views freely in matters affecting them (UNCRC Article 12).
United Nations Convention on the Rights of the Child 1989
Courts must appoint a guardian for a child in specified proceedings unless it's unnecessary to safeguard the child's interests (Children Act 1989, s. 41(1)).
Children Act 1989
A child's solicitor must usually follow instructions from the guardian, unless the solicitor believes the child is able to give conflicting instructions and understands the implications (FPR 16.29).
Family Procedure Rules 2010, Part 16 and PD16A
The court's decision on a child's ability to instruct a solicitor is based on a broad assessment of relevant factors, including understanding, not solely on welfare considerations (Re W (A Child) (Care Proceedings: Child's Representation)).
Re W (A Child) (Care Proceedings: Child's Representation) [2016] EWCA Civ 1051
Meetings between judges and children are not for evidence gathering; the judge's impressions from such meetings should not be the basis for the decision, and if relied upon should be disclosed to parties (Re KP [2014] EWCA Civ 554).
Re KP [2014] EWCA Civ 554
Outcomes
The appeal was allowed.
The judge erred by over-relying on her own assessment of A's ability to instruct a solicitor from their meeting, failing to give sufficient weight to expert opinions and previous findings, and not disclosing her reliance on the meeting to the parties.
The order permitting A to instruct his own solicitor was discharged.
The judge's assessment was based on an impermissible reliance on her own meeting with A, and contradicted consistent expert evidence of A's susceptibility to his father's influence and lack of independent understanding.