Written by: Ian Robertson
A professional dilemma
There are times in our professional lives when, no matter how experienced we are, we face ethical and moral dilemmas. Mine revolves around the right of a young person to be represented in care proceedings. Care proceedings are brought by a local authority in order to protect children who are or are likely to suffer significant harm because of poor parenting. In any such proceedings a child is automatically a party to the legal action and represented in court. The court also appoints a children’s guardian to represent the interests of that child. This is an experienced social worker employed by or contracted to CAFCASS (Children and Family Court Advisory and Support Service). As well as being there to protect the interests of the child the guardian also instructs the child’s solicitor to represent the child in court UNLESS the child is able, having regard to the their understanding, to give such instructions where they disagree with the Guardian. It is for the child’s solicitor to make this determination.
A solicitor can become a ‘children panel’ solicitor and represent children once they are three years’ qualified. To qualify, they have to attend a course, pass an admission test and interview. They also have to be committed in this day and age of diminishing respect and income for legal aid lawyers to forgo lucrative commercial practice. It is from this diminishing pool of solicitors that children’s representatives are selected.
So how does the solicitor make that determination? It is not a simple chronological equation – age is not the determinative factor. Some guidance has been given by the courts:
“The courts must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighed the paternalistic judgment of welfare. Having said that, welfare had a place in testing the sufficiency of a child’s understanding. If direct participation would pose an obvious risk of harm to the child, arising out of the nature of the continuing proceedings, and if the child was incapable of comprehending that risk, then the judge was entitled to find that sufficient understanding had not been demonstrated. However, judges had to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of, and participation in, the continuing proceedings”.
The problem in reality does not arise as frequently as one would imagine. Most cases involve very young children and even when the children are older they frequently agree with the guardian. In those cases where the issue arises the decision should be obvious, a bright 15-year old disagreeing with guardian for example. In a few marginal cases however problems arise. A solicitor faced with this dilemma needs to look at themselves first of all and consider their position. There are two competing and reputable schools of thought on the question of representation – ‘welfare’ where the test applied is a subjective best interests one, or ‘rights’ where the test applied is a more objective one. A solicitor needs to ask themselves where they stand on this difficult issue. Either position is tenable and respectable but a solicitor must be honest in understanding their approach. In all cases advice should be sought from the guardian and any experts instructed. If the solicitor is inexperienced they should seek advice from colleagues. In my experience children solicitors are generous of time and advice. Ultimately however it is the solicitor’s decision.
My dilemma? I have long been an unashamed proponent of the ‘rights’ approach to representation. In one case I was taken to task by Mrs Justice Hale as she then was for representing a 12-year old in proceedings involving international abduction (a view she questioned at an Association of Lawyers for Children conference a few years ago).
I represent a young man who is 16. I cannot go into details as it is an ongoing case, suffice to say that I am in a cleft stick as I have serious doubts about his competence but feel very uneasy at the prospect of a young person of this age not being directly represented. Ultimately I will have to make a decision after some sleepless nights. It all goes to show that even with thirty years’ experience new problems and challenges still arise, which is why I still enjoy doing what I do.