I am a Family and Childcare Solicitor serviving clients in our Brighton office along with other MW colleagues from our other offices along the South Coast.
Solicitor - Family & Child Law
I am asked frequently by parents going through family proceedings when and how a child can have his/her own solicitor and speak for himself/herself in court?
The Welfare Principle
Every decision that the Court makes in family proceedings is based upon a principle enshrined in the The Children Act 1989 called the welfare principle which states:
“… the child’s welfare shall be the Court’s paramount consideration”.
There is also the principle that “..any delay in determining a question about a child is likely to prejudice the welfare of the child”. The court attempts to work to tight timescales especially in care proceedings where there is a 26 week limit. However, in family proceedings where disputes between parents regarding who the children should live with, or access arrangements, there is no fixed timescale.
A court will only make an Order relating to a child if it is better for the child than not making an Order at all. The legislation supports the general principle that it is always better for families and children if the parents can come to an agreement instead of having to involve the Court to make a decision.
The Welfare Checklist
The Court considers and weighs up many factors when reaching a decision as to what Order to make. This is referred to by the lawyers and the court as the, “Welfare Checklist”. There are 7 factors which are taken into consideration:
- the wishes and feelings of the child (in light of his/her age and understanding)
- his/her physical, emotional and educational needs
- the effect on the child of a change in his circumstances
- his/her age, sex, background and any special characteristics which are relevant
- any harm he/she has suffered or is at risk of suffering in the future
- how capable each of the parents are in meeting the child's needs
- the range of powers the court has available to make the best decision for the child
A frequent misconception of parents going through stressful and worrying court proceedings is that if ‘Johnnie’ or’ Jane’ says what they want to happen then this will surely be what the Judge will listen to and the Court must arrive at this decision?
However, the Court has to balance many factors within the welfare checklist and the child’s wishes and feeling are just one factor in the complicated weighing up process which the Judge has to carry out. The older the child, the greater the weight is attached to what they say they would like to happen, but the Judge will make a decision based upon all of the welfare checklist factors and it is that child’s overall welfare which takes priority.
Public Law Proceedings and Guardians
Family proceedings may involve disputes between the state and parents called public law proceedings, (where a local authority and children’s services are involved e.g. care proceedings), and disputes between parents and/or other family members for example grandparents, called private law proceedings.
In public law proceedings the child is made an automatic party to the care proceedings and the court appoints a guardian for the child. The guardian is independent of the local authority and is a neutral party on behalf of the child. The guardian will be from an independent organisation called CAFCASS, (Children and Family Court Advisory and Support Service). Following on from their appointment the guardian appoints a children panel solicitor to be the solicitor for the child. Should there be a delay in appointing a guardian then the court may appoint a solicitor for the child direct. That child’s interests and welfare are then put before the court within the care proceedings by the child’s solicitor.
In care cases involving an older child often the situation can arise whereby the guardian believes that it would be best for the child/young person for one course of action to happen, but when discussing matters with that child or young person, that child strongly believes that the outcome suggested by the guardian is something which they do not agree with nor could they go along with. For example the child is in an interim foster care placement and the child wishes to return to one of his parents. Due to risks posed to the child the guardian would not be supporting this.
In these cases the child’s solicitor has to carry out an assessment of that child/young person. The child’s solicitor will consider the age of the child and how much they understand the concerns and worries that the local authority has about their care from the parent(s) which resulted in the court application, and if they understand the consequences of the instructions they wish to give about what should happen to them in the future? If the child’s solicitor assesses they can give separate instructions then an order may be granted by the Judge for their specific views to be argued in court through their own solicitor. The guardian will still put forward separately what he/she considers is in that child’s best interests.
Private Law Proceedings
In private law proceedings which concerns a dispute either between parents and/or other extended family members, the general rule is that the child is not a separate party to the proceedings. The court will ask a member of CAFCASS to prepare what is called a section 7 welfare report. The report is drawn up after discussing matters with the parents and meeting the child(ren) concerned to ascertain their wishes and feelings.
However, in a minority of difficult cases the court may decide that the child does need separate representation from the parent(s)/family members. In such cases the court will appoint a guardian to represent a child and take over the child’s case.
These cases are rare and only occur if one of the following is present:
- if the S7 report author recommends the child should be a party in their own right
- if there is an ‘intractable’ dispute over where the child should live or how much time they should spend with the other or if all contact has stopped altogether and there is implacable hostility which may be harming the child as a result
- an older child is opposed to a course of action being put forward by the S7 report author
- complex medical or health issues
- an international element possibly involving child abduction
- serious allegations of physical
- sexual or other abuse or domestic violence allegations
If a child is made a party to private law proceedings and they have their own guardian, a solicitor for the child will also be appointed to be the advocate in court.
A more mature child/young person can seek to instruct his/her own solicitor if they consider themselves to be affected by a family dispute. Upon meeting that child/young person, a children panel solicitor would need to carry out the exercise of assessing if they are capable of giving separate instructions and whether they understand the court process and the implications and consequences of any instructions they give to the solicitor and what they wish to happen. An assessment of their emotional intelligence and maturity would be carried out by the solicitor instructed. Legal Aid may be available for a child but in private law cases a full merits and means assessment would have to be made to the Legal Aid Agency including why the child/young person requires legal representation and confirming that they have no financial means to pay for the legal advice and representation themselves.
Can a child or young person give evidence?
There was a general presumption that only in an exceptional case should a child be called to give evidence in court.
In a Supreme Court case from 2010 called Re: W the circumstances surrounding when and how a child should give evidence were looked at closely and guidelines were issued which are followed by the courts today. There needs to remain a balance between protecting the child and the right that any child has to a family life, as well as the rights of the parent(s) to a family life and to a fair trial under their European Convention Rights.
At the heart of any decision, the court will look at the advantages in that child giving evidence to get to the truth of what has happened and achieving the best possible evidence before the court as against the possible damage or harm to that child’s welfare from the act of giving evidence.
There are now practical guidelines, safeguards and protections in place which must be followed by the Court and the lawyers before any child gives evidence. In my experience it is still only in the most exceptional cases that a child/young person has to face the ordeal of attending court and giving evidence.
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