District Court refuses to join children as parties in care proceedings due to risks of dual representation and exposure.

[2010] IEDC 5

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

M&T

RESPONDENTS

CHILD CARE ACT 1991— SECTION 19

IN THE MATTER OF CHILD 1, CHILD 2, CHILD 3, AND CHILD 4,

1 November 2010

1. On 22 February 2010, the applicants applied for, and were granted, Emergency Care Orders (section 13 Child Care Act 1991) in

respect of each of the five children. The Emergency Care Orders expired on 1 March 2010.

2. On 1 March 2010, the applicants applied for, and were granted, Interim Care Orders (section 17(1) Child Care Act 1991) in respect

of each of the four children. On various dates since then, the Interim Care Orders in respect of each of the children have been

extended (section 17(2) Child Care Act 1991), and are now extended to 15 November 2010.

3. The applicants have applied for Care Orders (section 18 Child Care Act 1991) in respect of each of the five children, which said

applications have been listed for hearing for 10 days commencing on 24 January 2011.

4. On 12 March 2010, a Guardian ad litem (“GAL”) was appointed pursuant to section 26 Child Care Act 1991 for each of the four

children.

5. The respondent mother is represented in these proceedings. The respondent father is not represented in these proceedings, and

his attendance at court has been sporadic.

6. The two older children have stated that they wish to have a solicitor represent them in these proceedings. Child 1 is aged 16 and

Child 2 has recently turned 15.

7. In dealing with applications under Part V of the Child Care Act 1991 (such as the applications made by the applicant herein), the

obligation of the Court is to give consideration to the wishes of the child as set out in section 24 of the Child Care Act 1991. Section

24 provides as follows:

‘In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having

regard to the rights and duties of parents, whether under the Constitution or otherwise, shall—

(a) regard the welfare of the child as the first and paramount consideration, and

(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to

the wishes of the child.’

8. Children are not parties to proceedings under the Child Care Act 1991 unless joined by the Court. The Court has power to join a

child under section 25 of the Child Care Act 1991. Section 25 of the Child Care Act 1991 provides as follows:

‘(1) If in any proceedings under Part IV or VI the child to whom the proceedings relate is not already a party, the

court may, where it is satisfied having regard to the age, understanding and wishes of the child and the

circumstances of the case that it is necessary in the interests of the child and in the interests of justice to do so,

order that the child be joined as a party to, or shall have such of the rights of a party as may be specified by the

court in, either the entirety of the proceedings or such issues in the proceedings as the court may direct. The

making of any such order shall not require the intervention of a next friend in respect of the child.

(2) Where the court makes an order under subsection (1) or a child is a party to the proceedings otherwise than by

reason of such an order, the court may, if it thinks fit, appoint a solicitor to represent the child in the proceedings

and give directions as to the performance of his duties (which may include, if necessary, directions in relation to the

instruction of counsel).

(3) The making of an order under subsection (1) or the fact that a child is a party to the proceedings otherwise

than by reason of such an order shall not prejudice the power of the court under section 30(2) to refuse to accede

to a request of a child made thereunder.

(4) Where a solicitor is appointed under subsection (2) , the costs and expenses incurred on behalf of a child

exercising any rights of a party in any proceedings under this Act shall be paid by the Health Service Executive. The

Executive may apply to the court to have the amount of any such costs or expenses measured or taxed.

(5) The court which has made an order under subsection (2) may, on the application to it of the Health Service

Executive, order any other party to the proceedings in question to pay to the Executive any costs or expenses

payable by the Executive under subsection (4).’

9. The Court has discretion to appoint a guardian ad litem for a child in proceedings under Parts IV and V of the Child Care Act 1991.

A guardian ad litem has been appointed for each of the children herein, including Child 1 and Child 2. The guardian ad litem is

appointed under section 26 of the Child Care Act 1991, which provides as follows:

‘(1) If in any proceedings under Part IV or VI the child to whom the proceedings relate is not a party, the court

may, if it is satisfied that it is necessary in the interests of the child and in the interests of justice to do so, appoint

a guardian ad litem for the child.

(2) Any costs incurred by a person in acting as a guardian ad litem under this section shall be paid by the Health

Service Executive. The Health Service Executive may apply to the court to have the amount of any such costs or

expenses measured or taxed. (3) The court which has made an order under subsection (1) may, on the application

to it of the Health Service Executive, order any other party to the proceedings in question to pay to the Executive

any costs or expenses payable by the Executive under subsection (2) .

(4) Where a child in respect of whom an order has been made under subsection (1) becomes a party to the

proceedings in question (whether by virtue of an order under section 25 (1) or otherwise) then that order shall

cease to have effect.’

10. The views and wishes of Child 1 and Child 2 have been before the Court almost since the beginning of the proceedings. Their

statements regarding their being in care are reported in a social work report dated 25 February 2010. Their views continue to be

referred to in subsequent social work reports and in the draft care plans submitted.

11. The views and wishes of Child 1 and Child 2 have been brought to the Court by the guardian ad litem. Some of the guardian ad

litem’s reports have a separate heading of ‘[X’s] Views and Wishes’ while others do not. It is, however, clear that their views and

wishes are reported in each report.

12. The views and wishes of Child 1 and Child 2 as expressed in the reports can be summarised as follows: they do not want to be in

the care of the HSE, they do not agree that there was any good reason for their being placed in the care of the HSE, they do not

accept that there are any child protection concerns, and they wish to return home to live with their parents.

13. In addition to the general views expressed above, the children have specifically requested that they be represented by a solicitor.

In his report dated 9 September 2010, the guardian ad litem states:

‘I met with Child 1 and Child 2 … to discuss recent events and keep them apprised of developments pertaining to

these proceedings. Child 1 and Child 2 refused to meet the writer on 20th July 2010 and within the past few weeks

they have queried having a solicitor appointed to represent their views in these proceedings as opposed to a

guardian ad litem. According to the social worker, the father advised both girls [during a recent access visit] not to

speak to the writer…. Child 1 and Child 2 confirmed this to be the case during our interview on 6th September 2010.

I advised both girls that they were not entitled to legal representation within the context of these proceedings as

they were still minors and as such it remained my role to convey their views to the court.’

14. While no specific written or oral application has been made by Child 1 and Child 2, or by the guardian ad litem, or by any of the

parties, I was of the view that the wish expressed by Child 1 and Child 2 to be represented by a solicitor must be given due

consideration.

15. I requested initial submissions from the parties. Following those submissions, I decided that if Child 1 and Child 2 were to be

represented by a solicitor in the proceedings, an order would have to be made under section 25(1) (and possibly under section 25(2)).

Given their age, I decided that it would be necessary to meet with the children, and I met with them on 27 September 2010. The only

other person present at the meeting was the court registrar.

16. At the outset of the meeting with the children, I told them that the purpose of the meeting was to deal with the question of

whether they should have their own solicitor, that it was a matter for the Court to decide whether and to what extent to permit their

participation in the proceedings (including through a solicitor), that the Court needed to decide on what was in their best interest. I

also told them that the meeting was not to discuss or decide the final issues, as regards their future care. I then discussed the

matter with them and asked them some questions with a view to ascertaining their wishes and their understanding. Both children

clearly stated that they wanted to have a solicitor represent them, that a solicitor would speak for them in Court and express their

views on their behalf better than they could themselves. I told them in summary what the guardian ad litem had told me of their

views, and they confirmed that the guardian ad litem had told them that he had so informed the Court. They also confirmed that they

wished to have a solicitor to present their views, rather than the guardian ad litem.

17. I was satisfied following this meeting that the children understand that these proceedings will determine whether their future care

is to be with their parents or with the HSE, and that this is a matter of great importance to them. I note that the guardian ad litem in

his report of 24 May 2010 stated that Child 1 and Child 2 have ‘a clear understanding of these proceedings’. I was satisfied following

this meeting that the children have some understanding of the role of a solicitor. It is clear that they do not have a complete

understanding of the proceedings and of all of the matters to be considered in the proceedings. Nevertheless, I think that they have

sufficient understanding to instruct a solicitor. I am satisfied that they do, in particular if the solicitor instructed is familiar with

proceedings of this type and is used to dealing with children.

18. An issue had been raised as to whether the request by the children to be represented by a solicitor in fact represented their own

wishes, or resulted from outside influence and manipulation (specifically by the father). It is reported that the father brought up this

issue (representation of his children by their own solicitor) with the social worker in March 2010. It is further reported that the father

discussed this matter directly with the children in August 2010. The children deny making this request solely as a result of being

directed to do so by the father.

19. I am of the view that having regard to their age and level of understanding, it is appropriate that the children should be informed

in an age appropriate way of the law relating to these proceedings. This includes being made aware, particularly when the issue was

raised by them, that the Court has discretion to join them as parties to the proceedings and to provide that they may be represented

in the proceedings. It is clear that they were not provided with this information by the guardian ad litem, rather that the guardian ad

litem informed them owing to their age they were not entitled to representation. It is clear from the evidence of the social worker

that the children were not provided with this information by the HSE. I am of the view that it is appropriate for parents to offer

advice to their children regarding their children’s dealings with the law, particularly so in this case given the interim nature of the

proceedings and the lack of information being otherwise provided to the children. Even if the father had an ulterior motive in offering

advice to his children (and I make no finding one way or the other in that regard), the advice apparently given (to seek

representation by their own solicitor) is not tainted by such an ulterior motive.

20. As regards whether the children’s request results from overbearing influence, I refer to Mabon v Mabon [2005] EWCA Civ 634, in

particular paragraph 8 as follows:

‘8 In In re H (A Minor) (Guardian ad Litem: Requirement) [1994] Fam 11, 15 Booth J dealt with the child whose views

were influenced or manipulated by adult family members:

“The test as to whether a particular child has sufficient understanding to participate as a party in

proceedings must, in my judgment, be considered in the light of all the circumstances of the case and in

the light of what has already happened as well as what is likely to happen in the course of the

proceedings in the future. In this case, while the evidence points to a strong influence by Mr R and his

family and associates upon H's views, it is impossible, as I judge it, on the evidence before me, to find

that the views that H presently holds are not his own to such an extent that he is not able to present

them as his case. Adopting the words of Thorpe J in In re H (A Minor) (Care Proceedings) [1992] 2 FCR

330, 339 I ask myself has the influence been so intense as to destroy the capacity to give coherent

and consistent instructions.”’

21. Having met with them, I do not find that the children’s views are not their own to such an extent that they are not able to

present them as their own case.

22. Having found the children to be of sufficient age and understanding to be able to instruct a solicitor, I must then consider

whether in the circumstances of the case it is necessary in the interests of the children and in the interests of justice to make an

order under section 25 of the Child Care Act 1991.

23. Section 25 of the Child Care Act 1991 allows the court to join the children as parties to the proceedings. All of the parties

directed my attention to section 26(4) of the Child Care Act 1991, and to the consequence of joining the children as parties to the

proceedings, namely that the guardian ad litem would then be removed from the case in respect of those children. Section 25 of the

Child Care Act 1991 also allows the Court to order that the children shall have such of the rights of a party as may be specified by

the Court in either the entirety of the proceedings or such issues in the proceedings of the court may direct. It appears to me that

such an order would not automatically result in the guardian ad litem being removed from the case.

24. I requested the parties to address the further issue under section 25 of the Child Care Act 1991 and in particular whether there

was a risk of harm to the children if they were permitted to have separate representation in the proceedings.

25. The Social Worker, gave evidence as set out in a report dated 7 October 2010. In summary, the evidence was that the

participation of the children in the proceedings by way of representation by a solicitor would carry a risk of harm, which risk outweighs

any potential benefits. Such harm could result from increased anxiety associated with court appearances, attachment related

problems and anxieties, upset and trauma caused by access to reports generated in the proceedings and/or evidence in Court relating

to their family. There was also concern that the guardian ad litem would be removed from the case if an order was made under

section 25 and that consequently the children would lose the benefit of the guardian ad litem’s expertise and participation.

26. The guardian ad litem made submissions through his counsel. In summary, it was submitted that the best interests of the children

would be served by the retention of the guardian ad litem in the case. It was submitted that the guardian ad litem has a dual role:

both to inform the court of the children’s views and wishes in an unbiased and unredacted manner and to advise the court of the best

interests of the child. It was submitted that a solicitor acting solely on the instructions of the children as to their views and wishes

would not be in a position to promote the best interests of the children where (as is submitted to be the case in these proceedings)

the views and wishes do not correspond with the best interests. It was submitted that a solicitor would not have the skills and

expertise of the guardian ad litem in identifying the children’s best interests and how those interests might be met on a practical

basis. It was submitted that representation of the children by a solicitor must involve access by the children to reports and other

evidence, and that such access could pose grave risks to their emotional well-being.

27. The mother of the children, also made submissions. She supports the children’s application for separate representation. She

submits that the children will otherwise not have an effective means of communicating their position in the proceedings and that this

may be detrimental to their welfare. She submits that fair procedures require that the children be provided with separate

representation. She submits that the children’s constitutional rights and their rights pursuant to Article 8 of the European Convention

on Human Rights and Article 12 of the United Nations Convention on the Rights of Children require that they be granted separate

representation.

28. The father submitted that pursuant to the Child Care Act 1991, the children are entitled to be represented by their own solicitor.

29. I have considered all the submissions made, both written and oral. I have also considered the circumstances of the case.

30. I had considered the possibility of making an order under section 25 of the Child Care Act 1991 stopping short of making the

children parties to the proceedings but allowing them representation for the purpose of arguing whether they should be joined as

parties. I have decided not to make such an order, as I cannot see how a solicitor could meaningfully represent the children, even if

limited to arguing that specific point, without the full rights of a party to the case, in particular the right to have reports and discuss

them with their client, and to have their client in court to hear evidence given so that instructions could be given arising from such

evidence.

31. I am of the view, therefore, that I must either join the children as parties to the proceedings, or refuse the application. If I join

the children as parties, this will firstly expose them to the risks referred to in the evidence given on behalf of the HSE and in the

submissions of the guardian ad litem and secondly result in the guardian ad litem being removed from the case. If I do not join them

as parties this will expose them to the risk referred to in the submissions made by the mother.

32. I have been referred to the recent case of the Youth Care Agency v CB (Supreme Court, 18th August 2010), which was a Hague

Convention case and not a case under the Child Care Act 1991. That case also involved a situation where the views and wishes of a

15 year old child were the opposite of what the guardian ad litem considered to be in her best interest. The Court was satisfied that

the child had sufficient understanding and held her views independently. The Court accepted that the combination of the guardian ad

litem putting her views before the court and her meeting with the judge dealt adequately with any conflict that existed in that case

between the views of the child and the guardian ad litem. The Court at paragraph 41 reserved the position regarding future cases of

conflict.

33. The case of Mabon v Mabon has also been referred to, in particular by counsel for the mother, in particular paragraphs 7, 8, 28,

and 29, as follows:

‘7. First instance decisions have considered three commonly encountered situations. The first is the disturbed child.

In In re H (A Minor) (Care Proceedings: Child's Wishes) [1993] 1 FLR 440, 449 I had said:

“Obviously a child suffering from a mental disability might not have such understanding. Obviously a

child suffering from a psychiatric disorder might not have such a level of understanding. But I cannot

follow her to the conclusion that if a child is only suffering from some emotional disturbance then really

there is little room to question his or her ability to instruct a solicitor. It seems to me that a child must

have sufficient rationality within the understanding to instruct a solicitor. It may well be that the level

of emotional disturbance is such as to remove the necessary degree of rationality that leads to

coherent and consistent instruction…”

8. [see paragraph 20 above] …

28. The guidance given by this court in In re S (A Minor) (Independent Representation) [1993] Fam 263 on the

construction of rule 9.2A is now 12 years old. Much has happened in that time. Although the United Kingdom had

ratified the United Nations Convention on the Rights of the Child 1989 some 15 months earlier, it did not have much

impact initially and it is hardly surprising that it was not mentioned by this court on 26 February 1993. Although the

tandem model has many strengths and virtues, at its heart lies the conflict between advancing the welfare of the

child and upholding the child's freedom of expression and participation. Unless we in this jurisdiction are to fall out of

step with similar societies as they safeguard article 12 rights, we must, in the case of articulate teenagers, accept

that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare.

29. In testing the sufficiency of a child's understanding I would not say that welfare has no place. 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 is incapable of comprehending that risk, then the judge is entitled to find that sufficient

understanding has not been demonstrated. But judges have 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.’

34. It is not clear to me whether Mabon v Mabon was a child care case or a private law case. More importantly, it appears from

paragraph 15 that the question of whether the children in that case should have separate representation arose only in relation to

what is described as a hearing for disposal, and not in relation to the trial of the disputed acts of misconduct on the part of the

parents. The relevant part of paragraph 15 is as follows:

‘15 … Mr Skinner appeared for the boys but failed to persuade the judge to grant his application. The judge

indicated that Mr Skinner might renew his application at the conclusion of the fact-finding trial. Mr Skinner and his

clients accepted that decision, recognising that a valid distinction could be drawn between the trial of disputed

acts of misconduct on the part of the parents and a subsequent and separate hearing for disposal.’

35. In this case, the evidence of the alleged deficits in care by the parents and associated evidence such as psychological reports

has yet to be given. In those circumstances, if Mabon v Mabon is to be relied upon, the reservation expressed at paragraph 29 is

relevant. I accept that direct participation by the children at this stage of the proceedings would expose them to the risks stated by

the HSE and the guardian ad litem. It is impossible to say with certainty whether the children in this case are capable of

comprehending this risk without actually exposing them to it. I must, therefore, rely on the circumstances of the case, my meeting

with children, and the evidence and submissions. I find that while the children would be capable of instructing a solicitor as to their

views and wishes, on balance they would not be capable of appreciating the risk that direct participation in the proceedings at this

stage would pose to them.

36. I am also of the view that the fact that an order under section 25 making the children parties to the proceedings would remove

the guardian ad litem from the case must also form part of my consideration, given that the Child Care Act 1991 does not allow for

‘dual representation’. The input of the guardian ad litem is invaluable to the Court in deciding the case in the best interests of the

children, and his removal from the case would at the very least hamper the Court, and could have serious detrimental consequences

for the children.

37. A decision either way carries risk for the children, in my view the risks to them of making a party to the proceedings outweighs

the risks of not doing so. In declining to make them parties, I take account of the fact that the guardian ad litem must continue to

bring the views and wishes of the children to the attention of the court and that it remains open to the judge hearing the case or any

part of it to hear further from the children by way of meeting with them. I am of the view that the combination of provision of a

guardian ad litem and the possibility of meeting with the judge satisfies the requirements of fair procedures and the provisions of

article 8 of the European Convention on Human Rights and article 12 of the United Nations Convention on the Rights of the Child.