The right for a minor to enjoy autonomous representation within family law proceedings, is enshrined under both the Care of Children Act 2004 and the Family Proceedings Rules 1991.
English common law functions within a patriarchal system; however, it is sometimes counter-productive to fetter the needs of the child, when their aptitude and resilience to parental influence permits them to speak for themselves.
In this matter, a couple had enjoyed a marriage bearing six children, until such time as they parted company. This produced an almost equal split between the children, with the father remaining with the three eldest boys aged thirteen, fifteen and seventeen.
After her departure, the mother applied for residence orders to enjoy spending time with her sons, whereupon the CAFCASS officer became the legal guardian of all six children prior to proceedings.
Following a lengthy and somewhat protracted hearing, the three boys approached their acting solicitor to remove the presence of the CAFCASS officer in lieu of direct representation.
This was requested under Rule 9.2A(4) of the Family Proceedings Rules 1991, which explains that:
“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 …”Family Proceedings Rules 1991
At which point, the court must evaluate the merits of such a request under Rule 9.2A(6), which reads:
“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.”Family Proceedings Rules 1991
On this occasion, the trial judge found himself unable to reconcile the boys’ request with his own consideration of both time constraints and the value of their own personal insight, before passing judgment.
In response, the boys’ countered by appeal to the Supreme Court that failure to allow for the removal of the appointed guardian, stood in direct conflict with article 12 of the United Nations Convention on the Rights of the Child 1989, and article 8 of the European Convention on Human Rights (ECHR) (Right to respect for private and family life).
Having also received a doctors report, the Court were reassured to learn that:
“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.”
Which on the facts, allowed for greater appreciation of Rule 9.2A(6) and confirmation that to prevent the independent and separate representation of the three boys, was counter to the purposes of the Family Proceedings Act 1991 and both Conventions.
This was a view supported by section 6(2)(a)(b) of the Care of Children Act 2004, which reads:
“6 Child’s views
(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.”
Hence, with full consideration of not only the statutory powers afforded children, but the advances in family law since 1991, the Court recognised the need to embrace the advocacy of children’s views within family cases.
And so, while section 42 of the Children Act 1989 affords guardians powers to investigate the views of minors within trial environments, it was held unnatural to override the tenacity and endurability of children for the sake of adult overprotection.
Whereupon, the appeal was upheld and the order of Rule 9.2A(4) of the Family Proceedings Act 1991 allowed, while the court reminded the parties that:
“[T]he right to freedom of expression and participation outweighs the paternalistic judgment of welfare.”