Children, Parents and the State.

However, there had been some conflict in the case-law as to whether or not the child’s welfare is paramount when the court is considering the application for permission to apply for a section 8 orders. Re C (A Minor)(Leave to Seek Section 8 Orders) suggests that many of the issues that children may wish to bring before the court will be regarded as too trivial and recognised a possible danger of allowing it to go ahead. Here, Johnson J applied the welfare principle. On the contrary, following Re A and Other (Residence Order), Booth J in Re SC (A Minor)(Leave to Seek Residence Order), said the child’s welfare was not paramount but, the child’s understanding in terms of her intellectual capacity to instruct a solicitor and to deal with the stresses and strain of the litigation itself were to taken into consideration. This deviation of judicial opinion was later considered by Stuart-White J in Re C (Residence)(Child’s Application for Leave) which concluded that the child’s welfare is an importance, but not a paramount, consideration, and this approach was later adopted by Johnson J in Re H (Residence Order: Child’s Application for Leave). 

As discussed above, this indicates that children litigating on their own are perhaps becoming to be approved by the judiciary, who may well now be less ready to react in an overly paternalistic fashion. It manifests a moving from interpreting the provision restrictively on welfarist ground to concentrating on a child’s actual capacity to instruct a legal adviser.

Beside having the right for section 8 orders, a child also can now initiate action: he can instruct a solicitor and obtain legal aid, as since 1990 children have been assessed on their own means making it easier to secure legal aid, so long as the ‘merits test’ is met. The rule for representation of children in legal proceedings differs depending on whether the case is brought in private law or public law. In this question, we will only look at private law proceedings.

As a general rule, a child cannot bring or defend legal proceedings otherwise than through a next friend or a guardian ad litem. However, a child with ‘sufficient understanding’, with permission of the court, can bring proceeding under the inherent jurisdiction of the court without a next friend or guardian ad litem, or can apply during such proceedings to discharge the next friend or guardian. Again, as established by case law, the courts have the final word over whether children have sufficient capacity to instruct a solicitor to carry through legal proceedings without the services of a guardian ad litem. The court also has the power to order that a child be separately represented in any family proceedings, but this power is rarely used.

The cases of Re S (A Minor)(Independent Representation) and Re H (A Minor) (Role of Solicitor) reflects the ‘judicial balance’, recognising that ‘a child’s wishes are not to be discounted or dismissed simply because he is a child. He should be free to express them and decision-makers should listen’ and ‘the fact that a child is, after all, a child.’ Where the child can dismiss the Official Solicitor, the court retains him in a different, and it has to be conceded, far from clear, capacity. Yet again, it is a matter of discretion for the judges as to whether or not to allow the child to become a party to proceedings. 

Thus, we would then examine what approach would the court take. The case of Re S (A Minor) (Independent Representation), shows an example of the courts accepting the ‘outcome approach’, that is, judging the child’s competence by considering the risk involved in the outcome. If the courts believe that there is a risk of damaging to the outcome by allowing a child to litigate on his own without a next friend or guardian ad litem, the child would not be regarded as legally competence to do so. Sir Thomas Bingham MR, although understood the need to encourage children’s capacity for autonomy and acknowledging their view, he was also concerned to protect them from making damaging mistakes and said, “Different children have differing levels of understanding at the same age. An understanding is not absolute. It has to be assessed relatively to the issues in the proceedings. Where any sound judgement on these issues calls for insight and imagination which only maturity and experience can bring, both the court and the solicitor will be slow to conclude that the child’s understanding is sufficient.”  

Whereas, in Re H (A Minor)(Guardian ad litem: Requirement) where a 15 year old boy, had sufficient understanding to participate as a party in wardship proceedings, considered that the Official Solicitor who was representing him was not representing his views, and he applied to be allowed to continue to defend the proceedings without the Official Solicitor acting as his guardian ad litem, and for the removal of the Official Solicitor from that position. Booth J requested H to adopt the role of amicus curiae to the court and at the same time, held that the test of whether a child has sufficient understanding for this should be judged in the light of all circumstances of the case, past, present and future. With both Booth J’s approach and the advice by Sir Thomas Bingham MR, solicitors seem to favour the view of Booth J that a child’s capacity to litigate without the services of a guardian ad litem requires not only the ability to instruct a solicitor regarding her own views on the desired outcome, but also ability to enter a court to give evidence and be cross examined as well as giving instruction on variety of matters and making decisions. On the other hand, it may be argued that it is possibly impractical to insist on all these capacities that will probably never be required as this may results to many private cases never reach a hearing.

This brings to a matter that causes particular concern, that is how to assess the level of a child’s understanding that is whether he has ‘sufficient understanding’. The difficulties in deciding first what this term means in practice, and then applying the meaning to the individual child has been the subject of research, as neither the Children Act nor the Rules nor for the matter of Guidance indicate what ‘sufficient understanding’ for the purpose of obtaining leave requires. What the research revealed was that one has to take into account not just the child’s demonstrable intellectual capacity, but also what information is possessed, not only possessed but understood by the child to enable him to make informed decisions. Decisions in this context must be based upon judgment not upon whim.

Despite the fact that the test of whether a child has sufficient understanding is one of Gillick competence, which set a precedent for children being able to challenge their parents’ exercise of parental responsibility when they are old and mature enough to understand the issues being decided, only the older teenagers are likely to be held to have sufficient understandings. While ten was the lowest age contemplated for taking instruction from a child, solicitors’ experience indicated that the High Court judiciary had very high requirement in age before they would willingly accept evidence of competence. High Court are more ready to accept a child’s competence where the child is between the age of 13-15 years old, whereas magistrate court were prepared to recognize competence in children as young as 10 years old. Although solicitors were informed by the court to take great care when deciding whether to take instruction of a child or not, there is still no exact and clear guidance on the proper skills required on children seeking leave for section 8 orders or instructing solicitors. This is probably the only significant gap in the Children Act 1989 which need to be considered.

In conclusion, it is indisputable that today, children had obtained larger access to the courts to settle family disputes. However, Freeman recognizes the existence of stress may affect children’s cognitive process, which may not be foreseen by children themselves. Moreover, giving children leave to obtain section 8 orders, may put a risk of breaking the child’s relationship with their parents and emotionally damaging for children. Accordingly, it may be suggested that, to protect children from such harm, a compulsory mediation process for all children seeking leave under section 10(8) could conceivably be introduced, but with great care to avoid children being, in so doing, excluded from access to the courts. Another proposal would be, as in the case of public law proceedings, providing children with the services of both a solicitor and guardian ad litem. This way, the child would be protected from any aspects which are damaging to her and at the same time, being guided and supported by her guardian ad litem throughout the litigation. If these suggestions are taken into account, it would be that the law had given children the right to conduct their own litigation and at the same time, protecting them from the stress of litigation.

---

BIBLIOGRAPHY

• Alston, Parker and Seymour (eds), Children, Rights and the Law, Clarendon Press, 1992
• Archard, Children: Rights and Childhood, Routledge, 1993
• Doughlas and Sebba (eds), Children’s Rights and Traditional Values, Dartmouth, 1998
• Fortin, Children’s Rights and the Developing Law, Butterworth, 1998
• Fortin, Rights Brought Home for Children, 1999 62 MLR 350
• Freeman, The Rights and Wrongs of Children, Frances Pinter, 1983
• Freeman, The Moral Status of Children, Martinus Nijhoff Publishers, 1999
• Herring, Family Law (Issues, Debates, Policy), William Publishing, 2001
• James and Prout (eds), Constructing and Reconstructing Childhood, 1990, Falmer
• Sawyer, Conflicting rights for children: Implementing welfare, Autonomy and Justice in family proceedings, 1999 JSWFL 99
• Stanley, Family Law, (3rd Edition), Palgrave Law Masters, 2001
• Roache, Children’s Rights: In The Name of The Child, 1995, 17 JSWFL 281

Website

•  www.eurochild.gla.ac.uk/ - Centre for Europe’s Children
• www2.essex.ac.uk/clc/ - Children’s Legal Centre
•  - Children’s Rights Information Network
•  - National Children’s Bureau
•  - Save The Children Fund

---