A (Children)

This is a short appeal from a case management order made by Lieven J on 4 December, by which she refused permission for the appellant children to be separately represented at a hearing beginning in a week's time. We are grateful to the parties for enabling the appeal to be heard at short notice and for their submissions today. We particularly note that the Appellants are represented pro bono by counsel Ms Kelly and by solicitors Goodman Ray.

Having considered the matter, we will allow the appeal. The application for separate representation through Goodman Ray will be granted on the accepted condition that there is to be no application for an adjournment of the hearing next week. Nor is it suggested that the hearing should not be conducted by the judge herself.

As this is a purely procedural appeal, nothing I say relates to the decisions of substance that will be taken next week, and I will give my reasons briefly.

The Appellants are a boy aged 16 years and nine months, and a girl aged 15 years and two months. By my order granting permission to appeal on 23 December, they have permission to bring the appeal without a litigation friend. They are the youngest of their parents’ six children. The family originates in Afghanistan and retains ties there, though it is resident in the United Kingdom.

The background is fully set out in the judge's judgment of 1 May 2024, reported as LA v M & Ors [2024] EWHC 1336. In summary, the eldest child, now 21, was married in Afghanistan when she was 16 or 17. That was before February 2023, when the legal age for marriage in this country rose to 18.

There have been three sets of proceedings about these children under the Forced Marriage (Civil Protection) Act 2007. The first set began in 2022 after the third child, then 16, was feared to be at risk of a forced marriage, and it ended in March 2023 after the family engaged in educative work. However, fresh proceedings were taken in September 2023 after the family unexpectedly went to Afghanistan in July 2023. While they were there, as the judge later found in her May 2024 judgment, the third child was married, then being 17 years old. She revealed this on her return, pregnant, to England in February 2024, but then reverted to denying that any ceremony had taken place, in common with the denial of the entire family. The judge found that the children were under an extreme undue influence from their parents.

The third and present set of proceedings relates to the youngest three children, the eldest of them, C, now being 18, and instructing Goodman Ray since she was 17, in February 2024. These proceedings were brought by the local authority in August 2024 for passport orders in respect of the children until each child reaches the age of 18.

A and B were represented by their children's guardian, appointed by CAFCASS. At a hearing on 6 September, the prospect of separate representation for them was discussed, but not decided. On 21 October, the guardian issued an application for passport orders and forced marriage protection orders for the three children until the age of 21. On the same day, the judge dismissed that application, leaving the age for the orders at 18 and returning the father's passport to him. That led to the guardian appealing in November and to me granting a stay of the return of the father's passport pending an application for reconsideration. On 4 December, the judge agreed to reconsider, and she set up a three-day hearing for 22 January.

That hearing will consider, firstly, passport orders in relation to the mother, father and three children; secondly, an extension of the existing forced marriage protection orders in relation to A and B to the age of 21; and thirdly, a fresh order in relation to C until the age of 21. The judge entertained an unwritten application by A and B for separate representation. Although they had, by then, been seen by Ms Gillani and Ms Dally at Goodman Ray, who found them capable of giving instructions, the children's solicitor, Ms Mahey, was understandably unwilling to transfer the legal aid certificate without an order of the court, reflecting the view held by the guardian and herself that the children remained under severe pressure from the parents.

The judge refused A and B's application for reasons given in a short ruling recorded in an approved note of judgment. She acknowledged that they wished to be separately represented. She described the case as “difficult and unusual”. She noted that there is no doubt that the appellants are Gillick competent, understand the issues and are intelligent. However, she said that the case was not about the children's competence, but rather about whether they are capable of giving instructions without the undue influence of their parents, in the light of the parents having lied about the third child's marriage.

The judge said that the case involves the most extreme level of undue influence and coercion, making it difficult to place reliance on what the children say to lawyers and the court. She concluded that they should continue to be represented by a guardian and not be separately represented. She stated that she placed great weight on their wishes and feelings, and urged them to speak to the guardian and their solicitor, so that their true wishes and feelings can be considered. She asked to hear their response to her judgment. Her order provides for them to make statements or write letters as they may choose, and leaves open the possibility of them giving oral evidence.

There are fully seven grounds of appeal, but the nub of the appellants’ submission is that the judge did not consider all relevant factors, but was diverted by her finding of undue influence. Reference is made to Mabon v Mabon [2005] EWCA Civ 634, [2005] 2 FLR 1011, which heralded a growing recognition of children's autonomy, reflected in article 12 of the United Nations Convention on the Rights of the Child.

The application for separate representation fell to be considered under Family Procedure Rules 2010, rule 16.6, which deals with separate representation of children. Subrule 6 states that the court will grant an application for a child to be separately represented:

“if it considers that the child has sufficient understanding to conduct the proceedings concerned or proposed without a litigation friend or children's guardian.”

The leading case on separate representation under rule 16.6 or its companion rule 16.29 is W (A Child) [2016] EWCA Civ 1051 2017 2 FLR 199, where Black LJ gave the leading judgment. For present purposes, I refer to my summary in In Re C (Child: Ability to Instruct Solicitor); Practice Note [2023] EWCA Civ 889; 2023 1 WLR 4065 at paragraph 58:

“Drawing matters together, this survey of the rules and cases shows that, whether the answer falls to be given by the child’s solicitor or by the court, the question will be: Does this child have the ability to instruct a solicitor in the particular circumstances of the case, having regard to their understanding? The assessment will be based on a broad consideration of all relevant factors and any opinions from solicitors and experts. The guidance in Re W (A Child) (Care Proceedings: Child's Representation) [2017] 1 WLR 1027bears repeating:

“Understanding can be affected by all sorts of things, including the age of the child, his or her intelligence, his or her emotional and/or psychological and/or psychiatric and/or physical state, language, ability, influence, etc. The child will obviously need to comprehend enough of what the case is about (without being expected to display too sophisticated an understanding), and must have the capacity to give his or her own coherent instructions without being more than usually inconsistent.”

The assessment will be case specific. It will not be driven by welfare factors, or by a theoretical comparison between protection and autonomy, but by a practical assessment of the child's understanding in the particular context of the case. There are no presumptions, and care will be taken not to overvalue any particular feature. The consequence of a sound assessment will be that the child's rights and interests are respected and preserved.”

Here, the judge was therefore called upon to make an all-round assessment of the relevant factors. It was a case management order by a judge with very significant experience of the family, and the appellants inevitably face a real challenge in seeking to persuade us that she was wrong or made a serious procedural error leading to injustice.

The local authority and children's guardian resist the appeal in a measured way. The guardian did not support the application before the judge, while the local authority had been neutral. Ms Jenkins and Mr Gupta KC, leading Ms Mellor, emphasised the starkness of the judge's findings about the scale of undue influence and her evident awareness of the countervailing factors, and argued that the decision was squarely open to her in this complex and nuanced case. She properly considered how the appellants’ voices could fairly be heard. She emphasised the importance of their wishes and feelings, and said that she would place great weight on them. She encouraged engagement with the guardian and solicitor and made provision for an updating analysis from the guardian.

Despite the skill and realism with which they were made, I do not accept these submissions for the reasons that follow. Making allowance for this being a short case management ruling, it does not, in my view, take into account sufficiently or at all a number of relevant features:

My conclusion is, therefore, that there has not been the necessary all-round assessment of the relevant factors. The judge's decision cannot stand, and we must remake it. In doing so, I would accept without hesitation that the findings about the severity of the parents’ undue influence must be a major feature. But in all the circumstances, it does not lead me to the conclusion that the children do not have the ability to instruct a solicitor, having regard to their understanding. Their understanding needs to be sufficient, not complete. By allowing them to be involved in the decision in the way that they seek, the court is likely to gain a fuller view of the arguments, and the children may find it easier to accept the outcome, whatever it may be. The court will be alert to the likelihood that their views have been influenced by their parents and older siblings, and it will reach its conclusions about that. But its focus will be on making the best decision to protect the children from risks of forced marriage, and that will not be helped by restricting their participation in the decision making process in a way that would foreseeably overshadow the upcoming hearing about their welfare and protection.

For these reasons, and for those that will, I believe, be offered by Stuart-Smith LJ, with which I agree, I would allow the appeal and grant the application for separate representation. This outcome entails no criticism whatsoever of the guardian or her solicitor, who have been conscientiously carrying out their duties on behalf of the children. The input of the guardian will continue to be of importance, although she will not now be legally represented.

I agree. like my Lord and my Lady, I start off with a strong instinct to uphold case management decisions by a very experienced judge if the decision can be justified, whether or not I would have reached the same decision. However, I am persuaded by the reasons given by my Lord that the decision of the judge on this occasion cannot be justified. I only add that, for me, the critical feature is that if the judge’s order were allowed to stand, there would be no one responsible solely for presenting the perceptions and submissions of the children in a case of very great significant for them. Although I am sure that it is true, it is not a satisfactory response to say that the guardian will present their views, while at the same time pursuing her application, which the children presently see as contrary to their interests. Finally, this is not a case in which there are any adverse welfare consequences to be anticipated from their having separate representation.

I agree with both judgments.