A Case Law Update: Representing Older Children in Care Proceedings

(First published on The Law Society)

Representing teenagers in care proceedings and taking instructions from them directly, can be very different from representing younger children, who will have a children’s guardian (a social work professional) from CAFCASS acting as a litigation friend. Some recent decisions in the High Court and Court of Appeal have raised a number of topical issues that need to be considered by practitioners who represent older children.

The first thing to consider when representing an older child is whether they are competent to give instructions directly. Whether the child is ‘Gillick competent’, is the long-established test requiring them to have ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed’. If this test is met and the child has a different view from their guardian, then it becomes necessary to represent them separately and advocate directly on their behalf.

This issue is more complicated where the child is not also the subject of proceedings; for example, where a young mother, who herself is a child, has a baby who the local authority applies to the court to take into care. Currently, the young mother is not entitled to a children’s guardian to act as a litigation friend and give instructions on her behalf if she lacks capacity, and the official solicitor will need to be invited to act as a litigation friend. A child under 16 is presumed to lack capacity and require a litigation friend, unless the instructed solicitor is satisfied that they are competent. Competency is related to the issues that are to be decided in the case. In Re S [2017] EWHC 2729 (Fam), Mr Justice Cobb provides guidance in respect of a young mother giving consent to adoption. The case also provides a useful overview of the principles relevant to the issue of competency.

There has also been a flurry of recent cases relating to Deprivation of Liberty Orders (DoLs). While child care practitioners will be familiar with secure accommodation orders, the recent judgment from the president of the Family Division in Re X [2017] EWHC 2036 (Fam) has raised the serious implications arising from the lack of availability of such placements.

For some children requiring specialist care available within secure accommodation units, but finding none available, this has resulted in special arrangements being made in non-secure residential units, such as two carers being present with the young person at all times, which can amount to a deprivation of liberty in accordance with article 5 rights. These arrangements require sanctioning under the inherent jurisdiction of the High Court, although recent cases have considered whether such arrangements can be approved by parents exercising parental responsibility. The president of the Family Division, Sir James Munby, considers this issue in Re D [2017] EWCA Civ 1695, and draws a distinction between those children who are Gillick competent and those who are not. This case also provides a useful overview for practitioners of the issues arising where DoLs apply.

Another issue frequently requiring consideration when acting for an older child, is how should their voice be heard. The procedure for considering whether a child should give evidence in court is well established in the Supreme Court judgment of Re W [2010] UKSC 12. The instances when the child may give evidence in court can be placed into two broad categories: first, those where evidence is given on factual matters relating to whether they (or another child) have suffered significant harm; and second, to elicit their wishes and feelings and views as to their future care arrangements.

Whilst it is rare for a child to attend court for the purpose of obtaining evidence on any issue, it is perhaps more so in respect of ascertaining their wishes and feelings, and it is generally accepted that giving oral evidence in court is likely to be an ordeal for even the most robust child. Child care practitioners may rely on a child’s guardian to elicit the child’s views and becoming their voice to the court, but when representing an older competent child it may fall to the child’s solicitor themselves to undertake this task, and care must always be taken. In Wolverhampton City Council v JA & ors [2017] EWFC 62, Mr Justice Keenan raised concerns about the questioning of a 13-year-old child by her solicitor and guardian, following the making of an allegation of sexual abuse. The questioning was undertaken in such a way that led to her evidence becoming inadmissible. Practitioners need to be aware of where the boundaries lie in regard to taking instructions from child clients.

Consideration should always be given as to whether the child may benefit from a meeting with the judge at an early stage and kept under review, particularly at the issues resolution hearing. In London Borough of Brent v D & ors [2017] EWHC 2452 (Fam), Mr Justice MacDonald reviewed the guidelines for arranging meetings between the judge and children within proceedings, which provides a useful overview for practitioners. However, with regard to the purpose of such meetings, it should be noted that at paragraph 43 he states: ‘It cannot be stressed too often that the child’s meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the CAFCASS officer. The purpose is to enable the child to gain some understanding of what is going on and to be reassured that the judge has understood him / her.’

Whilst no doubt there are many other relevant issues to consider when representing older children, this article hopefully provides some food for thought.

About Vicky Preece

Vicky is a senior solicitor in the childcare team at IBB Solicitors, having qualified as a family lawyer in 2002 and become a member of the Law Society’s children panel in 2007. Vicky undertakes much of her own advocacy and has appeared in all level of court up to and including the Court of Appeal. Vicky is the winner of the Solicitor Advocate of the Year 2017 at the Law Society’s Excellence Awards. Vicky can be contacted on 01494 790007 and 01895 207869 or via email on vicky.preece@ibblaw.co.uk.