Law Report: Child of 11 could not remove Official Solicitor: Re S (a minor) - Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Rose and Lord Justice Waite), 26 February 1993

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A child of 11 lacked sufficient understanding to instruct his own lawyers in an emotionally complex and highly fraught family dispute about the arrangements best suited to promote his welfare and was refused leave to remove the Official Solicitor, who, as his guardian ad litem, would bring the child's views fully and fairly to the court.

The Court of Appeal dismissed an appeal by C, a boy of 11, from Judge Callman's refusal of C's application under rule 9.2A(4) of the Family Proceedings Rules 1991 to be represented by a solicitor without a guardian ad litem and for the removal of the Official Solicitor as his guardian ad litem.

C, whose parents are divorced, lives with his mother and sees his father frequently and regularly. In strongly contested and acrimonious applications to determine whether C should continue to live with his mother or move to his father, the Official Solicitor was appointed C's guardian ad litem and had made reports to the court.

The Official Solicitor, supported by a consultant psychiatrist, recommended that C should continue to live with his mother. The father, supported by C, contended that C should live with him.

Roderic Wood (Mishcon de Reya) for C; Patricia Scotland QC, and Kharin Cox (Hornby & Levy) for the mother; Richard Bond (Official Solicitor) as C's guardian ad litem; the father did not appear and was not represented.

SIR THOMAS BINGHAM MR, giving the judgment of the court, said that the rule which prohibited a minor from bringing or defending proceedings otherwise than through a next friend or guardian ad litem was of long standing. In the wardship jurisdiction, the Official Solicitor acted not only as the child's solicitor and spokesman but also as an officer of the court, with an independent brief to investigate issues of fact or divergent expert opinion and address the court as to the requirements of the best interests of the child.

The Children Act 1989 permitted a minor in family proceedings to conduct a case in person or to instruct his solicitor in certain prescribed circumstances. The requirements for a child's representation might be different as between cases in public law and in ordinary private family proceedings between parents. In care proceedings for example it was possible for a child to be both represented by a solicitor and also have a separate person acting as guardian ad litem. There was no corresponding possibility where the contest lay only between parents: the child could be represented by a guardian ad litem or by a solicitor but not by both.

Rule 9.2A of the Family Proceedings Rules 1991 governed applications for residence or contact orders under section 8. The rule dealt with the situations where a minor wished to begin or defend proceedings without a guardian ad litem, having never had one, and where the minor had had a next friend or guardian but wished to continue without.

Solicitors accepting instructions from a child under paragrah (1)(b), having considered that the child was able, having regard to his understanding, to give instructions, undoubtedly exercised a scrupulous, conscientious and responsible judgment. But if the court were to consider that paragraph 1(b)(i) was not satisfied, it would be entitled to act under paragraph (10) and appoint a next friend or guardian ad litem.

That would not, of itself, terminate the solicitor's retainer, but it would be likely to lead to withdrawal of the child's legal aid.

Where a court granted leave under paragraph (4) to a minor who had a next friend or guardian to prosecute or defend without a next friend or guardian, it must also remove the next friend or guardian.

Although the rules did not expressly confer any right on the parents to be heard on an application such as C's, a judge always had a discretion to hear any party whom he thought it necessary or desirable to hear in the interests of justice.

The 1989 Act enabled and required a judicious balance to be struck between two considerations. First was the principle, to be honoured and respected, that children were humans beings in their own right with individual minds and wills, views and emotions, which should command attention. Second was the fact that a child was, after all, a child. Children were 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 would react in certain situations, and the experience to measure the probable against the possible.

Everything depended on the individual child in his actual situation. The process of growing up was a continuous one. The judge had to do his best to assess the understanding of the individual child in the context of the proceedings in which he sought to participate.

In the present case the judge reached a clear view that C should continue to be represented by the Official Solicitor. That was not only a proper conclusion but an inevitable one. Any other would have bordered on the perverse. The case cried out for the application of an objective, experienced judgment such as the Official Solicitor. Had the judge, surprisingly, granted C's request, undoubtedly he would have sought the continuing assistance of the Official Solicitor as an amicus.

The Official Solicitor was duty bound to bring C's views fully and fairly to the notice of the court, as both he and the consultant psychiatrist had conscientiously done. But the judge's conclusion that this 11-year-old boy lacked sufficient understanding to participate as party in these emotionally complex and highly fraught proceedings was impregnable.

Ying Hui Tan, Barrister