Child: Judge went too far in making her own assessment of boy’s ability to instruct
A family court judge was wrong to order that a 14-year-old boy be allowed to instruct his own solicitor in care proceedings, the Court of Appeal has ruled.
Lord Justice Peter Jackson said Her Honour Judge McKinnell “made her own assessment” of the boy’s ability to instruct after meeting him, describing him as “very mature and very insightful” when the evidence from two psychiatrists was that he was “emotionally immature and lacking insight”.
He said the judge was “distracted by general observations about exercising caution before depriving intelligent older children of their own representation”, which led her to “overlook how extreme and effective” his father’s abuse had been.
The lord justice said this was not a case where the boy, A, had his own solicitor in the previous proceedings, nor was it a case where a child had formed an unwise view of their own.
“Instead, these children have been the victim of severe alienation of a kind that should have led the judge to firmly reject the application for A to be allowed to instruct a solicitor directly, for all the reasons she gave when making these care orders.”
The court heard in C (Child: Ability to Instruct Solicitor) [2023] EWCA Civ 889, that the order allowing the boy to instruct his own solicitor arose in the context of proceedings brought by his parents to discharge care orders in respect of A and his sister B, who is 13.
“The care orders were made to protect the children from parental conflict and from behaviour by their father that had severely alienated them from their mother.”
The parents married in 2006 and separated in 2019 before divorcing. “Communications further deteriorated after the separation and private law proceedings began, eventually involving the mother obtaining a non-molestation order in early 2020 and reducing the father’s contact.
“On several occasions the children ran away from their mother to their father, including for a month in March 2020, and the mother then stopped contact with their father altogether for a period.”
An interim care order was made in November 2021 and the children were put in foster care, where they have remained.
The father was arrested and charged with breaching the non-molestation order preventing contact with his children in June 2022, spending two weeks in custody on remand.
At the same time, it was discovered that a 250-page e-book had been published in A’s name on Amazon Kindle.
“The book, entitled Monstrous, Corrupt and Criminal Family Court, with its Social and Health Services, contained significant personal information about the children, the case and professionals including foster-carers. Injunctions were granted by the High Court and Amazon removed the book from sale.”
During the discharge proceedings, HHJ McKinnell met the children separately in March 2023 in the presence of their joint solicitor and foster carers. The solicitor applied for an order for separate representation for A in May.
Later that month, HHJ McKinnell gave an ex tempore judgment allowing A to instruct his own solicitor. The mother, supported by the local authority, appealed.
Peter Jackson LJ said that it was “the judge’s role to adjudicate, not to assess” but “she made her own assessment of A’s ability to instruct in a manner that went well beyond the permissible use” of the meeting.
“The problem was compounded by the judge not expressly disclosing to the parties the reliance she was planning to place on her own view, so that they were deprived of the opportunity to alert her to how questionable that would be.”
The reasons given by the judge for her assessment were “not sustainable”. Peter Jackson LJ said that both father and son were “under the same delusion about the cause of the problems and the opportunity for A to instruct his own solicitor gives him a powerful extra dimension within which to perpetuate this damaging narrative, oblivious to the harm that he might be causing himself”.
The judge allowed the appeal and discharged the order permitting A to instruct his own solicitor. However, he said there was no reason why HHJ McKinnell should not continue to have conduct of the proceedings.
Lady Justice Elisabeth Laing and Lord Justice William Davis agreed with his judgment.
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