Child’s permission to seek permission to apply for a section 8 order

Application to a High Court judge

What judge does a child (Mary) apply to if she wants an order under Children Act 1989 (CA 1989), s 8: that is, say, where Mary wants to ask the court for which parent she should live with or to have contact with; or even an order to stop Mary’s parent or parents forcing her to do something she does not want to do, or preventing her doing something she wants to do? In the Re CT case below, C (a client of mine) was adopted and wanted to go back to live with her adopted parents.

According to an existing practice direction (PD) Mary, who will almost certainly have her own solicitor, must apply to a High Court (ie Family Division) judge. Practice Direction of 22 February 1993 (Applications by children: leave), [1993] 1 WLR 313, [1993] 1 FLR 668 says:

'Under s 10 of the Children Act 1989, the prior leave of the court is required in respect of applications by the child concerned for s 8 orders (contact) prohibited steps, residence and specific issue orders). Rule 4.3 of the Family Proceedings Rules 1991 and r 3 of the Family Proceedings Courts (Children Act 1989) Rules 1991 set out the procedure to be followed when applying for leave. Such applications raise issues which are more appropriate for determination in the High Court and should be transferred there for hearing.'

Issued [by the then President of the Family Division] with the concurrence of the Lord Chancellor.

Children Act 1989, s 10(8)

This PD specifically deals with applications under CA 1989, s 10(2) and (8), where a child seeks permission to make that child’s own CA 1989, s 8 order. It was considered fully and approved in Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, sub nom Re T (A Minor) (Child: Representation) [1994] Fam 49, [1993] 3 WLR 602, CA. All section 10(8) applications should therefore be dealt with by a High Court judge. The practice direction received further blessing from Wall LJ (later Sir Nicholas Wall P) in Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011. He said:

'[39] … Although [CA 1989 s 10] gives a child the right to apply to the court for permission to make an application for an order under [s 8 the PD] which followed the implementation of the Act stated that such applications raised issues which were more appropriate for determination in the High Court and thus should be transferred there for hearing: see Practice Direction (Applications by Children: Leave) [1993] 1 WLR 313.'

Despite the PD and its having been affirmed by two of the leading cases on section 10(8), issue in the High Court is sometimes not happening. For example, the case of CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child's Understanding) [2019] EWHC 634 (Fam), [2019] 1 WLR 4286 (18 March 2019) was dealt with on appeal from a circuit judge, by Williams J. Williams J makes it clear he had read Re CT but he makes no reference to the PD; and he seems to have been unconcerned that the appeal was from a circuit judge who had dealt with the case.

Family Proceedings Rules 1991, r 4.3 (mentioned in the PD) does not seem to have a clear replacement rule in Family Procedure Rules 2010 (FPR 2010). What rule 4.3 says is that where application is made ‘for leave to commence proceedings’ (ie for permission) the application must be made setting out why permission is sought and with a draft of the proposed main application (ie for the section 8 order Mary is seeking). When the court considers permission it must either grant the application or set it down to a hearing.

Procedure for an application

Applications for permission under section 10(8) under the modern rules (ie FPR 2010, Pts 12 and 16) must observe the procedure in the PD in the absence of any other.

These must be seen alongside the existing rule for the filing of evidence at FPR 2010, r 12.19. This rule applies to all proceedings for a CA 1989, s 8 order (rule 12.19(1)); and, by definition, it applies if you do not yet have an application before the court, because you are a child who is seeking section 10(8) permission. Under the heading ‘Additional evidence’, rule 12.19 goes on:

'(2)     Unless the court directs otherwise, a party must not –

(a)     file or serve any document other than in accordance with these rules or any practice direction;

(b)     in completing a form prescribed by these rules or any practice direction, give information or make a statement which is not required or authorised by that form; or

(c)     file or serve at a hearing –

(i)     any witness statement of the substance of the oral evidence which the party intends to adduce; or

(ii)     any copy of any document (including any experts' report) which the party intends to rely on.'

So if Mary, or her solicitor, wants to put in evidence, they should ask for a direction from the court first.

All this may not be relevant to many practitioners; but where a child seeks help and advice from a solicitor, the starting point for seeking permission from the court – the High Court, Family Division – is here.

David Burrows

Written by David Burrows

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