Representation of children and their rights

This book is about child law: the rights of children and the way they give evidence and express views in courts. But rights are of little meaning if you do not know about them; or you do not have someone who can help to understand and represent those rights. When I was working on Chapter 6 of this book and trying to reduce the law into a manageable form for those who represent children, I realised what a fractured set of principles is the law of representation of children’s rights in family proceedings. It often has no clear logic and is not easy – even for specialist children lawyers – to understand.

Children Act 1989 (CA 1989) changed the statutory face of children law; and much of the 1989 Act (subject to often prolix amendment) is the same now as in 1989. Procedural law in relation to child representation – now Family Procedure Rules 2010 (FPR 2010) Pt 16 – has remained largely unchanged. It has not been amended in substance (apart from early amendment in 1992) since introduction of Family Proceedings Rules 1991.

The result is a scheme under the Act and Pt 16 which even a children lawyer of the calibre of Lady Black (Black LJ as she then was) has described as ‘of complexity’ (in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027). I quote the full passage in her judgment (considered more fully at 6.88):

‘[18] There was some divergence of view as to which precise part of Rule 16 FPR 2010 should be the focus of the court’s attention. This was explored during the hearing but I do not propose to go into the details because there was, in fact, agreement as to the “test” that determined whether or not FW was entitled to be separately represented. I should make clear that when I speak of FW being separately represented, this is a loose term not entirely reflecting the complexity of the scheme under section 41 of the Children Act 1989 and Rule 16 FPR 2010 [ie FPR 2010 Pt 16]. What I seek to convey by it is a situation in which FW separates from the children’s guardian appointed to represent her interests, and gives her own instructions to a solicitor, as occurred in the original care proceedings….’

As explained at 6.116, it is possible that even after that explanation the Court of Appeal did not find the correct way, in law, through the ‘complexity’. For example, there was probably no need in the early stages of the case for a children’s guardian to be appointed (recovery order proceedings under CA 1989 are not ‘specified proceedings’: s 41(6)). Had the court got that right originally the appeal is unlikely to have been necessary; the girl’s lawyers need not have done so much work free (‘pro bono’); and we would not ever have heard of the case.

There are at least four separate schemes for child representation in family proceedings: in care proceedings (CA 1989, s 41); in private proceedings where the child applies for an order (CA 1989, s 10(8)); child abduction (Hague Convention) proceedings; and where a child applies to join in proceedings which concern him or her (CA 1989, Pt 2 or Hague Convention). In each of these the law and rules as to a child’s representation are different. They can be found in different statutes and proceedings rules. In each an assessment of the ‘understanding’ of an older child will be necessary; though the law is not always clear on exactly when and by whom this assessment is to be done (see Chapter 6, Part 4).

This preface introduces Children’s Views and Evidence which can be purchased here.

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