wishes and feelings Mabon v Mabon & Ors  EWCA Civ 634
Appeal to allow independent representation of children under r 9.2A of the FPR 1991
Case No: B4/2005/0558
Neutral Citation Number:  EWCA Civ 634
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SALISBURY COUNTY COURT
HIS HONOUR JUDGE DIXON
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 26 May 2005
LORD JUSTICE THORPE
LORD JUSTICE LATHAM
LORD JUSTICE WALL
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SUSAN HELEN MABON Applicant
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Craig, Andrew, Adam, Kirsteen, Helen & Callum Shawdale-Mabon
(By their guardian ad litem, James Barclay)
On appeal by the 2nd, 3rd and 4th Respondents. 1st Respondent
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
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Mr M Everall QC & Mr A Skinner (instructed by Messrs Battens) for the Appellant
Mr S Wildblood QC & Mr D Lochrane instructed by The Family Law Centre) for the Guardian ad litem
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As Approved by the Court
Crown Copyright ©
LORD JUSTICE THORPE:
1. This appeal focuses upon Rule 9.2A of the Family Proceedings Rules 1991.
2. Rule 9.5 provides for the separate representation of children. Rule 9.5(1) states: -
"Without prejudice to rules 2.57 and 9.2A, if in any family proceedings it appears to the court that it is in the interests of any child to be made a party to the proceedings the court may appoint– (a) an officer of the service…to be the guardian ad litem of the child with authority to take part in the proceedings on the child's behalf."
3. Rule 9.2A provides mechanisms whereby minors may sue without a next friend. Rule 9.2A(4) provides: -
"Where a minor has a next friend or guardian ad litem in proceedings and the minor wishes to prosecute or defend the remaining stages of the proceedings without a next friend or guardian ad litem, the minor may apply to the court for leave for that purpose and for the removal of the next friend or guardian ad litem …"
4. Rule 9.2A(6) provides: -
"Where the court is considering whether to
(b) grant leave under paragraph (4) and remove a next friend or guardian ad litem,
it shall grant the leave sought and as the case may be remove the next friend or guardian ad litem if it considers that the minor concerned has sufficient understanding to participate as a party in the proceedings concerned or proposed without a next friend or guardian ad litem."
5. Rule 9.2A(6) has been considered by this court in the case of Re S (A Minor) (Independent Representation) (CA)  2 FLR 437. In giving the judgment of the court, Sir Thomas Bingham MR said at 444H: -
"…Different children have differing levels of understanding at the same age. And understanding is not absolute. It has to be assessed relatively to the issues in the proceedings. Where any sound judgment on these issues calls for insight and imagination which only maturity and experience can bring, both the court and the solicitor will be slow to conclude that the child's understanding is sufficient."
6. Later at 448E he said: -
"The 1989 Act enables and requires a judicious balance to be struck between two considerations. First is the principle, to be honoured and respected, that children are human beings in their own right with individual minds and wills, views and emotions, which should command serious attention. A child's wishes are not to be discounted or dismissed simply because he is a child. He should be free to express them and decision-makers should listen. Second is the fact that a child is, after all, a child. The reason why the law is particularly solicitous in protecting the interests of children is because they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will react and the imagination to know how others will react in certain situations, lacking the experience to measure the probable against the possible. Everything of course depends on the individual child in his actual situation. For purposes of the Act, a babe in arms and a sturdy teenager on the verge of adulthood are both children, but their positions are quite different: for one the second consideration will be dominant, for the other the first principle will come into its own. The process or growing up is, as Lord Scarman pointed out in Gillick ( AC 112 at p 186B  1 FLR 224 at p250H), a continuous one. The judge has to do his best, on the evidence before him, to assess the understanding of the individual child in the context of the proceedings in which he seeks to participate."
7. First instance decisions have considered three commonly encountered situations. The first is the disturbed child. In the case of Re: H (A Minor) (Care Proceedings: Child's Wishes)  1 FLR 440 I had said: -
"…Obviously a child suffering from a mental disability might not have such understanding. Obviously a child suffering from a psychiatric disorder might not have such a level of understanding. But I cannot follow her to the conclusion that if a child is only suffering from some emotional disturbance then really there is little room to question his or her ability to instruct a solicitor. It seems to me that a child must have sufficient rationality within the understanding to instruct a solicitor. It may well be that the level of emotional disturbance is such as to remove the necessary degree of rationality that leads to coherent and consistent instruction."
8. In the case of Re: H (A Minor) (Role of Official Solicitor)  2 FLR 552 Booth J dealt with the child whose views were influenced or manipulated by adult family members. She said: -
"The test as to whether a particular child has sufficient understanding to participate as a party in proceedings must, in my judgment, be considered in the light of all the circumstances of the case and in the light of what has already happened as well as what is likely to happen in the course of the proceedings in the future. In this case, while the evidence points to a strong influence by Mr R and his family and associates upon H's views, it is impossible, as I judge it on the evidence before me, to find that the views that H presently holds are not his own to such an extent that he is not able to present them as his case. Adopting the words of Thorpe J in Re H (A Minor)(Care Proceedings: Child's Wishes) 1 FLR 440:
'Has that influence, I ask been so intense as to destroy the capacity to give coherent and consistent instructions.'"
9. The seeming quotation from my judgment in the above passage is not in fact a quotation. My Lord, Latham LJ, pointed out that the word 'adopting' was clearly a misprint for 'adapting'.
10. In Re: C (Residence: Child's Application for Leave)  1FLR 927 Stuart-White J brought into account the factor of litigation disturbance. He said at 930G: -
"First of all, it is pointed out that there are certain aspects of the statement submitted by the applicant which show a degree of lack of objectivity and a lack of insight. I have considered that statement and whilst, as I say, there is a degree of force in that submission, nevertheless, I have to ask myself whether such lack of objectivity and lack of insight as is manifest in that statement is a function of the youth of the applicant or is a function of the individual child or adult who distressingly finds himself or herself caught up in distressing disputes of this kind, and it is of course the experience of the courts that many adult individuals find it very difficult to be wholly objective when advancing their case in matters of this sort."
11. The most recent case in the reports on this question is Re: N (Contact: Minor Seeking Leave to Defend and Removal of Guardian)  1 FLR 652. It is not necessary to draw any special factor from this decision but I will return to consider its place in the overall context of the authorities.
12. It is against that background that I turn to the facts of the present case. The parents came together in 1986 and had six children, the fourth birth being twin-girls. They separated in June 2003, the mother leaving with the three youngest children, the father remaining in the matrimonial home with the three eldest.
13. On the 12th November 2003 the mother applied for residence orders. On the 1st April 2004 the CAFCAS officer, Mr Barclay, filed his first report. However on the 20th April Mr Barclay was appointed Guardian of all six children and on the 5th May the six children were joined as parties to the action to be represented by their guardian. On that date the judge, His Honour Judge Dixon, was giving directions for a fact finding hearing to commence on 6th July 2004 with a four day time estimate.
14. Unfortunately, even though the judge limited his inquiry to establish what had happened on a single day, namely 18th April 2003, the trial escalated into ten court days, spread over five months and culminating in a judgment of the 23rd December 2004.
15. After the July break the hearing was to resume on the 1st September. On the 12th August the three eldest boys attended the offices of Messrs Battens and sought to instruct them to represent them at the resumed hearing. The solicitors acting for the guardian were entirely co-operative and on the 23rd August the public funding certificate in relation to the three eldest boys was transferred to Messrs Battens. The application under rule 9.2A(4) was issued on the 24th August and was considered by the judge on the 1st September. Mr Skinner appeared for the boys but failed to persuade the judge to grant his application. The judge indicated that Mr Skinner might renew his application at the conclusion of the fact finding trial. Mr Skinner and his clients accepted that decision, recognising that a valid distinction could be drawn between the trial of disputed acts of misconduct on the part of the parents and a subsequent and separate hearing for disposal.
16. Following judgment on the 23rd December 2004 Judge Dixon made arrangements for the renewed application to be decided at a contested hearing on the 22nd February 2005. Mr Skinner's renewed application was opposed by counsel for Mr Barclay and again refused by the judge. In giving directions for the future disposal hearing, the judge sanctioned a report from Dr Martyn Gay. Judge Dixon refused an application for permission to appeal on the 8th March. The application to this court was filed on the 15th March. The application was supported by a conspicuously clear and persuasive skeleton settled by Mr Andrew McFarlane QC. Accordingly on the 18th March I directed an oral hearing with appeal to follow if permission granted.
17. It was impossible to arrange that hearing before the 26th April, by which time Mr McFarlane had been appointed to the Division. Mr Mark Everall QC took over the appellant's case and it was refixed for 12th May to ensure his availability. On the 5th May Dr Gay's report on the family (dated 28th April 2005) was circulated.
18. It is not necessary to set out or review in detail the judgment of Judge Dixon. A brief citation from p.17 sufficiently conveys its essence: -
"…I ask myself what advantages are to be gained from independent representation? I see none, save perhaps for the more articulate and elegant expression of what I already know. I ask myself what disadvantages will there be from independent representation? I see several. Delay from the prolongation of the proceedings, unquantifiable emotional damage from contact with the material in this case, and exposure to the harshness of the litigation process."
19. In his detailed analysis of the judgment Mr McFarlane identified twenty factors relied upon by the judge in reaching his conclusions. That analysis, submitted Mr McFarlane, demonstrated that the judge had taken into account a number of irrelevant factors, that he had failed sufficiently to register the distinction between the completed fact finding trial and the future disposal hearing, that he had repeatedly introduced welfare considerations as though the paramountcy principle applied and that he had failed to treat each applicant separately.
20. Mr Everall naturally adopted Mr McFarlane's skeleton and added a brief supplemental skeleton in which he emphasised the impact of our International treaty obligations, particularly Article 12 of the United Nations Convention on the Rights of the Child 1989 and Article 8 of the ECHR. In relation to Article 12 he pointed to the right of the child to express his or her views freely. In relation to Article 8 he stressed that the child's right to private life demanded a respect for his personal autonomy. The child's right to family life included a procedural right of participation in the court's decision making process.
21. Mr Stephen Wildblood QC filed a careful skeleton deploying all available arguments in support of the judgment below.
22. At the conclusion of Mr Everall's oral submissions and the court's obvious inclination to accept them, Mr Wildblood sensibly restricted himself to general observations on the proper construction and application of rule 9.2A(6) and particularly on the extent to which the issue of welfare was to be weighed in the balance.
23. There are a number of factors which pointed strongly towards the grant of separate representation in the present case. The applicants were at the date of judgment aged respectively 17, 15, and 13. What remained was a disposal hearing. As Mr Everall eloquently put it without separate representation how were they to know what their parents were contending for: were there cross-applications for residence, what were the contact applications? It was simply unthinkable to exclude young men from knowledge of and participation in legal proceedings that affected them so fundamentally. They had been seen by an experienced family practitioner who had no doubts as to the sufficiency of their understanding: hardly surprising given that they are educated, articulate and reasonably mature for their respective ages.
24. In my judgment it is unnecessary to search through the judgment below to assemble a list of factors that were insufficiently weighed and a list of factors that were impermissibly weighed. I am in no doubt that the judge was plainly wrong. That conclusion is fortified by the subsequent report from Dr Gay, which was of course not available to the judge. Dr Gay had had the opportunity of assessing the three eldest boys both collectively and individually. The flavour of his assessment is encapsulated in the following citation: -
"What is clear is that all three boys are very able. They are quick in terms of being articulate and perceptive. Andrew is perhaps the more articulate of the three boys; being the middle of the three he tends to be the spokesman, whilst Craig is the more quiet and thoughtful of the three."
25. Insofar as I have been critical of the judge's conclusion I would like to express my regard for the care that he gave to his judgment and to his equally careful search for the right outcome. In our system we have traditionally adopted the tandem model for the representation of children who are parties to family proceedings, whether public or private. First the court appoints a guardian ad litem who will almost invariably have a social work qualification and very wide experience of family proceedings. He then instructs a specialist family solicitor who, in turn, usually instructs a specialist family barrister. This is a Rolls Royce model and is the envy of many other jurisdictions. However its overall approach is essentially paternalistic. The guardian's first priority is to advocate the welfare of the child he represents. His second priority is to put before the court the child's wishes and feelings. Those priorities can in some cases conflict. In extreme cases the conflict is unmanageable. That reality is recognised by the terms of rule 9.2A. The direction set by rule 9.2A(6) is a mandatory grant of the application provided that the court considers "that the minor concerned has sufficient understanding to participate as a party in the proceedings concerned." Thus the focus is upon the sufficiency of the child's understanding in the context of the remaining proceedings.
26. In my judgment the Rule is sufficiently widely framed to meet our obligations to comply with both Article 12 of the United Nations Convention and Article 8 of the ECHR, providing that judges correctly focus on the sufficiency of the child's understanding and, in measuring that sufficiency, reflect the extent to which, in the 21st Century, there is a keener appreciation of the autonomy of the child and the child's consequential right to participate in decision making processes that fundamentally affect his family life.
27. Mr McFarlane in his skeleton argument suggested that the decision of Coleridge J in Re: N was an unduly cautious and therefore regressive assessment of the sufficiency of the child's understanding. That may be because Mr McFarlane had successfully persuaded the judge to focus upon issues such as the ramification of proceedings and the risk of significant emotional harm from direct involvement. Mr Everall did not seek to pursue that criticism, accepting that Coleridge J had reached a legitimate conclusion having regard to the fact that the child was only eleven and that the judge had properly regarded the context of those proceedings.
28. The guidance given by this court in Re: S cited above on the construction of rule 9.2A is now twelve years old. Much has happened in that time. Although the United Kingdom had ratified the UN Convention some fifteen months earlier, it did not have much impact initially and it is hardly surprising that it was not mentioned by this court on the 26th February 1993. Although the tandem model has many strengths and virtues, at its heart lies the conflict between advancing the welfare of the child and upholding the child's freedom of expression and participation. Unless we in this jurisdiction are to fall out of step with similar societies as they safeguard Article 12 rights, we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare.
29. In testing the sufficiency of a child's understanding I would not say that welfare has no place. If direct participation would pose an obvious risk of harm to the child arising out of the nature of the continuing proceedings and, if the child is incapable of comprehending that risk, then the judge is entitled to find that sufficient understanding has not been demonstrated. But judges have to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings.
30. I am indebted to Judge Boshier, Principal Judge of the Family Court of New Zealand, for drawing my attention to section 6 and 7 of Care of Children Act 2004 which comes into force in his jurisdiction on the 1st July 2005. Section 6 and 7 are in these terms: -
"6 Child's views
(1) This subsection applies to proceedings involving¯
(a) the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or
(b) the administration of property belonging to, or held in trust for, a child; or
(c) the application of the income of property of that kind.
(2) In proceedings to which subsection (1) applies,
(a) a child must be given reasonable opportunities to express views on matters affecting the child; and
(b) any views the child expresses (either directly or through a representative) must be taken into account.
7 Lawyer to act for child
(1) A Court may appoint a lawyer to act for a child who is the subject of, or who is a party to, proceedings (other than criminal proceedings) under this Act.
(2) However, unless it is satisfied the appointment would serve no useful purpose, the Court must make an appointment under subsection (1) if the proceedings -
(a) involve the role of providing day-to-day care for the child, or contact with the child; and
(b) appear likely to proceed to a hearing.
(3) To facilitate performance of the lawyer's duties and compliance with section 6 (child's views), the lawyer must, unless he or she considers it inappropriate to do so because of exceptional circumstances, meet with the child.
(4) The lawyer may call any person as a witness in the proceedings, and may cross-examine witnesses called by a party to the proceedings or by the Court."
31. This is of course an almost automatic provision of direct representation and participation in the proceedings.
32. In conclusion this case provides a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally. The Rules are sufficiently robustly drawn to accommodate that shift. In individual cases trial judges must equally acknowledge the shift when they make in individual cases a proportionate judgment of the sufficiency of the child's understanding.
33. I would like to pay tribute to the appellant's solicitors who prepared a first class appeal bundle for the hearing and to counsel who argued the issues so skilfully.
34. I would allow the appeal and make the order under Rule 9.2A(4) in respect of each child.
LORD JUSTICE LATHAM:
35. I entirely agree and have nothing to add.
LORD JUSTICE WALL:
36. I have had the opportunity of reading Thorpe LJ's judgment in draft. I entirely agree with it, and like him, I would allow this appeal. I add a short judgment of my own in order to reflect the on-going debate within the family justice system about the manner in which the voice of the child is best heard and heeded in family proceedings. In this context, I would like in particular to associate myself with the views expressed by Thorpe LJ in paragraphs 28, 29 and 32 of his judgment.
37. In a paper entitled The Voice of the Child in Private Family Law proceedings in England and Wales given at the Anglophone/Germanophone Judicial Family Law Conference held in Cardiff between 8 and 11 September 2004, Professor Mervyn Murch, identified neatly the difficulties which the English legal system puts in the way of children's participation in the family law process. He said: -
"…notwithstanding the entrenchment of the welfare principle, traditionally under English law, children's futures have been decided on the views of adults, that is the parents and the professionals…. The common law adversarial mode of trial which still forms the basis of our civil family proceedings, although modified and in continuous development, makes it difficult for all but the most confident and competent children to participate effectively. "
38. An example of this difficulty, and one which perplexes our colleagues on the continent of Europe, is the reluctance of the English judge to talk to children in private. This reluctance has several origins, but one of them is undoubtedly rooted in the rules of evidence and the adversarial mode of trial. What is said in private by the child to the judge cannot be tested in evidence or in cross-examination. As a consequence, a judge in England and Wales cannot promise a child that any conversation with the child will be entirely confidential. That fact may inhibit children from expressing their true wishes and feelings to the judge in such circumstances: - see, for example, B v B (Minors) (Interviews and Listing Arrangements)  2 FLR 489.
39. A second example is the fact that although section 10 of the Children Act 1989 gives a child the right to apply to the court for permission to make an application for an order under section 8 of the Act, the Practice Direction 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  1 All ER 820.
40. The Children Act 1989 and the Family Proceedings Rules 1991 provide the two methods by which children can be separately represented in proceedings relating to their welfare as identified by Thorpe LJ in his judgment. I am in no doubt at all that in the overwhelming majority of cases in which it is appropriate for children to be separately represented, what has become known as the "tandem model" of representation serves the interests of those children extremely well. The child has the input of expertise from the different disciplines of lawyer and guardian, who are able, with the court's permission, to call on additional expertise and advice where necessary. In public law proceedings, section 42 of the Children Act 1989 gives the guardian sweeping powers of investigation on the child's behalf. At the same time, the child concerned is protected from the corroding consequences of adversarial litigation. Children are not required to give evidence and be cross-examined: they do not have access to the sensitive documentation generated by the case. This system is, of course, paternalistic in approach, but it usually works well, in my experience, even in cases where the child has sufficient understanding to participate in the proceedings concerned without a guardian.
41. However, the FPR 1991 sensibly make provision for the circumstance in which the guardian and the children concerned fall out, as has happened in this appeal. In these circumstances, FPR rule 9.2A(4) gives children the right to apply to the court for permission to prosecute or defend the remaining stages of the proceedings without the guardian, and FPR rule 9.2A(6) makes it clear that the court must grant that permission and remove the guardian if it considers that the children concerned have sufficient understanding to participate in the proceedings concerned without a guardian.
42. The judge's reluctance to remove the guardian in the instant case is summarised in the paragraph from his judgment set out by Thorpe LJ in paragraph 18 of his, and I respectfully agree with the criticisms of his approach identified by counsel in their skeleton arguments and analysed by Thorpe LJ in paragraph 23 of his judgment. The judge, it seems to me, was motivated by two particular considerations. The first was his laudable desire to protect the three children from the effects of the litigation. The second was his belief that the children were not, in reality, expressing their own views, but those of their father. In those circumstances, the strength and validity of their views were, in the judge's eyes, substantially if not entirely devalued, and could be advanced by the guardian.
43. My difficulty with that approach is that the judge seems to me, with all respect to him, to have perceived the case from the perspective of the adults. From the boys' perspective, it was simply impossible for the guardian to advance their views or represent them in the proceedings. He would, no doubt, faithfully report to the judge what the boys were saying, but the case he would be advancing to the judge on their behalf would be (or was likely to be) directly opposed to what the boys were actually saying.
44. In these circumstances, I do not agree with the judge that the only advantage from independent representation was "perhaps the more articulate and elegant expression of what I already know". That analysis overlooks, in my judgment, the need for the boys on the facts of this particular case to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented and their perspective fully advanced to the judge.
45. In these circumstances I regard Re N (Contact: Minor Seeking Leave to defend and removal of guardian)  1 FLR 652 as a careful exercise of judicial discretion by Coleridge J to the facts of a particular, and highly complex case. I do not find it of any assistance in determining this appeal.