In the recent decision in CS v SBH  EWHC 634 (Fam), the High Court was asked to decide whether or not a child who had instructed a legal representative, had sufficient understanding of the family proceedings within the meaning of Family Procedure Rule 16.6 so as to give instructions to their representative to pursue an appeal.
The case is of relevance to family practitioners as most of the case law on the participation of children in family law appeals have been in the context where the Civil Procedure Rules apply, i.e. at Court of Appeal level and not in cases involving appeals from a Circuit Judge to the High Court as in this case, where the Family Procedure Rules (FPR) apply.
The family proceedings had started out as an application to vary a child arrangements order made by the Family Court in January 2017 by the child’s mother. In January 2017, the court had ordered that the child should live with her father and spend time with her mother. On 6 November 2018, the Family Court dismissed the mother’s application. Following the order on 6 November 2018, the child (CS), appealed the court’s refusal to make an order that she should live with her mother. At the date of the order of 6 November 2018 and at the date of the hearing before the High Court, CS was 12 years old going on 13.
The dispute over the child arrangements for CS had first begun in 2015 and during the original court proceedings, CS had the benefit of a Children’s Guardian. When the variation application was pursued by the mother, the same Children’s Guardian was appointed to act for CS under FPR 16.4 and she, in turn, appointed a child law solicitor to act for the child. In October 2018, CS’ solicitor met with her to decide whether or not CS was competent to instruct her directly without a Children’s Guardian in case there should be a conflict situation between the Children’s Guardian and CS’ own wishes and feelings. CS’ solicitor decided that CS was not competent in applying the criteria under rule 16.29 of the Family Procedure Rules.
In the end, there was no conflict and the Children’s Guardian filed a report recommending that the child should live with her mother.
Finally, prior to the final hearing of the mother’s variation application on 6 November 2018, CS wrote a letter to the Judge saying that her views were not influenced by her mother.
In a detailed judgment, the Judge considered that although there was evidence of change in the mother’s emotional stability, there was insufficient evidence of a change in the mother’s attitude to the father so as to enable the court to change the child’s primary place of residence as there remained a significant risk of parental alienation with the father if the court did so.
On appeal, CS was represented by a Solicitor who had been contacted by the child’s mother. CS had not returned to her previous Solicitor because she disagreed with the competency assessment that had been carried out in October 2018.
A further issue identified by the court on appeal was whether an appeal constituted new proceedings or not for the purposes of FPR 16.6. If so, the criteria to be applied was that under FPR 16.6(3) and it was for the new Solicitor to make an assessment of competency, subject to the court’s power to intervene of its own motion. If the appeal did not constitute new proceedings, the criteria to be applied was set out under FPR 16.6(6) and the court’s permission would be required before CS could instruct a legal representative. After balancing the factors for and against, Mr Justice Williams decided that the appeal was a continuation of the first instance proceedings and therefore the correct test was FPR r16.6(6) which requires the court to consider that “the child has sufficient understanding to conduct the proceedings”.
In arriving at its decision as to CS’ competency, the High Court reviewed the authorities at paragraphs 51-59 and found at  that the case law showed there has been a shift from a paternalistic approach in favour of an approach giving significantly more weight to the autonomy of the child in evaluating whether they have sufficient understanding.
In carrying out its assessment, the Court observed that the letter from CS to the Judge in October 2018 was at odds with the decisions of the previous judges and the expert in the first set of proceedings that CS’ wishes were enmeshed with those of her mother and were not in fact independent.
The court also had statements from both the previous solicitor who had acted for CS alongside the Children’s Guardian and her solicitor on appeal. The solicitors on appeal had first seen CS in May 2018 but did not go on to be instructed until more recently. However, they had assessed her as competent at that point in time. No further assessments had been carried out since she “instructed” them to appeal. On the other hand, CS’ previous solicitor maintained that she lacked competence in the proceedings which had been determined and implied that she would still lack competence on appeal.
Balancing all the relevant factors, the Court found that CS did not have sufficient understanding to conduct the proceedings and that its answer would have been the same under both the tests provided for under FPR 16.6. A particularly persuasive factor was the fact that the child’s previous solicitor was more fully aware of the entire history of the proceedings and so her evaluation was a more informed evaluation of the child’s sufficiency of understanding than that of CS’ new solicitor.
As a result, the court ruled that the child was unable to pursue an appeal without a Children’s Guardian as the circumstances under FPR 16.6 had not been met by CS.