Wishes of a Gillick-competent child

Wishes and feelings of a mature child

In AS v CPW [2020] EWHC 1238 (Fam) (18 May 2020), Mostyn J reviewed the modern law on wishes and feelings of a child of age and understanding (and see Children’s Views and Evidence, David Burrows, October 2017, Bloomsbury Professional, Chapter 4 on ‘Child’s views’). He pinned his colours firmly to the mast of the courts doing more than just taking into account the views of a child in proceedings if the words of the House of Lords are not to be ‘hollowed out’.

In AS v CPW the question was whether the views of a 14½  year old (‘B’, hereafter ‘Ben’, born on 14 January 2006) should be ‘given effect to’ on the subject of his wish to remain in Sierra Leone where his mother had taken him to be with his extended family and to go to school there. This was against a background of, as Mostyn J put it, that Ben ‘was going off the rails’ (see [6]). For example he had been excluded from his school in South London. His mother gave written evidence that he was getting involved in gang culture and she was worried for his life in the light of ‘the high level of knife crime in South London which is gang related’.

Ben’s mother (W) was married to his father (S) in 2005. Both were born in Sierra Leone. In July 2019 W took Ben to Sierra Leone to see if Ben could continue his education in Freetown; and while there (perhaps before) decided she would prefer that he stayed – ‘an extremely poor example of unilateral self-help’ (at [10] said Mostyn J, though she seems to have ultimately reached the same decision as the judge on the issue).

In February 2020 Ben and his brother (aged ten) and sister (aged nearly nine) were made wards on the father’s application in the High Court in February 2020. A Family Court district judge said that the father’s inward return order application could only be made by the High Court; though as Mostyn J later explained, this was wrong.

At that stage Ben was still in Sierra Leone with W’s family. She had returned to UK. A High Court Cafcass office was appointed and interviewed Ben on-line and joined in a conversation with his father. The Cafcass officer reported, said Mostyn J:

'[14] … [Ben] was a loquacious and effervescent young man…. He spoke spontaneously and freely and not as a result of any scripting or other coercion from the mother or her family. She judged him to be chronologically mature. She did not feel that she was limited in her assessment of the expression of his wishes because her medium of communication was not face-to-face. She recorded a positive and natural interaction between [Ben] and his father. She recorded how [Ben] stated that he missed his mother and his siblings. Above all, however, she recorded an emphatic, categorical and repeated wish [by Ben] to remain in Freetown until the summer of 2022 when he will have completed his GCSEs….'

Wishes and feeling of Ben: ‘decisive’ or ‘taken into account’

Mostyn J considered the law applicable to Ben’s position. He must consider this by reference to the ‘paramountcy principle’ and Children Act 1989, s 1(1), and in particular the matters in section 1(3), the first of which is Ben’s ‘wishes and feelings’. In particular he contrasted the assertions before him Ben’s ‘wishes are entitled to be taken into account’. He asserted his own view that this is not enough. ‘I do not think that properly reflects the amount of weight that the court should place on not unreasonable wishes expressed by a child of this age’ (see [16]. He continued: ‘It is noteworthy that in other spheres of family law, and indeed the general law, the decision of a child of 14½ will be decisive of the matter in question.’

Dealing with the welfare of a child is quintessentially a matter for judicial discretion; but plainly judges will be guided by earlier authoritative decisions. Mostyn J summarised the law since the regressive Re Agar-Ellis (1883) 24 ChD 317, CA which was overruled by the Court of Appeal in Hewer v Bryant [1970] 1 QB 357 and ‘consigned to the history books’ by Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR (in Gillick the ‘understanding’ was whether a doctor could provide contraceptive information to a child under 16 without her parent’s consent or knowledge: the answer was, yes).

Lord Scarman’s opinion includes (at [1986] 1 AC 112, 186 and [1986] 1 FLR 224, 251 and cited by Mostyn J at [19]):

'The underlying principle of the law … is that parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision….'

Mostyn J points out (at [21]) that strictly speaking in wardship a child’s views are not ‘decisive’; but, he says that in his view if Gillick is not to be hollowed out, those wishes must be accorded more than ‘due regard’:

'[22] … In my judgment it is not merely a question of giving ‘due regard’ to the wishes of a Gillick-competent child on a particular issue. In my judgment, if the decision of the House of Lords in Gillick is not to be hollowed out, the wishes of a Gillick-competent child on a particular issue, where they are not objectively foolish or unreasonable, should normally be given effect.'

His conclusion was that he did not consider ‘Ben’s wishes to be ‘objectively foolish or unreasonable’, and that therefore in his judgment ‘it is in [Ben’s] best interests that they should not be overridden. Therefore, the father's application for a summary inward return order is dismissed and the mother's application to keep B in Sierra Leone until the summer of 2022 is granted’.

There was no need for the children to have been made wards. Wardship added nothing to the powers already possessed by the Family Court. The children were de-warded. These proceedings were transferred back to the Family Court.

David Burrows

Written by David Burrows

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