London Borough of Havering v The Mother & Ors

This is an application made by the father for an expert assessment of three children, the three oldest children in these proceedings, C, born on [date], D born on [date], and E born on [date]. The application was due, according to my last order of 24 April 2025, by 27 May 2025 but is dated 3 June and was uploaded to the portal on 4 June 2025. It contains no application for relief from sanctions. Be that as it may, we have heard full argument on the application today.

The wording of the application is as follows,

“There are concerns that the children have different views from their Guardian and are now of an age where they may be able to instruct the solicitor. The application is to instruct an expert to do an assessment as to whether the children are competent to instruct a solicitor without going through a Guardian.”

I am very grateful for the detailed submissions that have been made by each of the parties. The application by the father is supported by the mother and not supported by the Guardian or the Local Authority.

The submissions by Miss Wilson on behalf of the father stressed the importance of the children’s voice being heard within the proceedings and for them to understand that it has been heard. The importance of the children being heard is something that the court is very alive to. I have met them on several occasions.

On behalf of the children, through their Guardian, Miss Cservenka, points to the detailed assessments that were done by the solicitor for the child and highlights evidence in the bundle about how the children are doing at school and from Dr Woolfson who assessed them previously. She says that the solicitor for the child has carried out an appropriate assessment and that no expert instruction is necessary.

I am very mindful that I am giving this judgment at quarter past 4 and so what I propose to do since it is professional representatives and clients in the room, and the mother and father are no longer in court, is maybe not to read out in full certain paragraphs of case law or procedure rules, but to leave the full contents to be filled in in any transcript that I need to approve, unless the advocates object.

I start by reminding myself of article 12 of the United Nations Convention on the Right of the Child: A child who is capable of forming views has the right to put them. Article 12 provides:

“1.

State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.

2.

For this purpose, the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, through a representative or an appropriate body, or in a manner consistent with the procedural rules of national law.”

Similarly, I remind myself of section 1(3)(a) of the Children Act and the particular regard that must be had to children’s wishes and feelings, in the light of their age and understanding.

I remind myself of the duty placed on the Guardian in this regard under Family Procedure Rules 16.20(3).

I also remind myself of the text and provisions of Family Procedure Rules 16.29:

Subject to paragraphs (2) and (4), a solicitor appointed –

under section 41(3) of the 1989 Act; or

by the children’s guardian in accordance with the Practice Direction 16A,

If a solicitor appointed as mentioned in paragraph (1) considers, having taken into account the matters referred to in paragraph (3), that the child –

wishes to give instructions which conflict with those of the children’s guardian; and

is able, having regard to the child’s understanding, to give such instructions on the child’s own behalf,

The matters the solicitor must take into account for the purposes of paragraph (2) are –

the views of the children’s guardian; and

any direction given by the court to the children’s guardian concerning the part to be taken by the children’s guardian in the proceedings.

I remind myself, too, of Practice Direction 16A paragraph 6.6(b) that the Guardian must also advise the Court of the wishes of the child in respect to any relevant matter in proceedings, including the child’s attendance at court.

I take note that the solicitor in this case is a member of the Law Society’s Children Panel, an accreditation that signifies a degree of experience and expertise in representing children. The case of C (Child: Ability to instruct Solicitor) [2023] EWCA Civ 889 at paragraph 50 reminds me that “the judgement about whether a child has the ability to instruct is quintessentially a matter for the solicitor in the unique circumstances of the case and expert assistance will not always, or even usually, be necessary”. Caselaw reminds me it is not usually necessary to have the court determine competence, it is usually a matter for the solicitor for the children, the court only becomes involved where there is a dispute.

I remind myself of the case of Re S (A Minor) (Independent Representation) [1993] 2 WLR 801 and, particularly, at paragraph 814F, provides that:

I remind myself of the case of Mabon v Mabon [2005] EWCA Civ 634, which Miss Wilson cites in her position statement. It is a private law case. The case reminds of the risk of harm where a child is given the job of providing instructions and the risk of harm that might arise from the denying the child the knowledge of proceedings. There is a risk of participation if they are not able to do so with sufficient understanding but also as risk of being denied participation when able to do so:

“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."

I remind myself that Black LJ in Re W (A Child) (Care Proceedings) [2016] EWCA Civ 1051 affirmed that what is needed is sufficient understanding and that will depend on all the facts of a given case. Black LJ reminds us that I must exercise any caution before allowing a conclusion that the child is a parent’s mouthpiece and, of course, I make no finding in that regard today. Today certainly is not an occasion where I would be able, fairly, to reach any conclusion about the extent to which the children have, if at all, been influenced by the views of the others.

In Re W as summarised in paragraph 55 of Re C I am remindedthat “caution is also required when taking account of the risks to a child from direct participation, so that the judge does not stray into treating the question as a welfare assessment rather than an assessment of understanding. There will often be a risk of harm to a child not only from participating in the litigation but also from not participating.” I have to “consider in practical terms the consequence of refusal of representation: in that case further dissatisfaction and the lost opportunity for engagement with a trusted professional.”

The Judge will be expected to be guided by the Guardian, the case continues, and by those solicitors who have formed a view as to whether they could accept instructions from the child, and then it will be for the Judge to form their own view on the material available at that stage in the proceedings, sometimes, but certainly not always, including expert opinion on the question of the child’s understanding. This is paragraph 36 of the judgment, which concludes,

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

I remind myself of the case of Re W and ask, does each child have the ability to instruct a solicitor in the particular circumstances of the case and the guidance in that case bears repeating. The child will obviously need to comprehend enough of what the case is about. So I have to make a practical assessment of the children’s understanding in the particular context of this case.

I also remind myself of the Family Justice Council guidance and I hope that counsel will forgive me for not reciting it verbatim, but particularly the definition of competence in paragraph 4 and the distinction between the terms “capacity” and “competence” in paragraph 5.

I remind myself of the guidance in paragraph 12 and the emphasis on the need to ensure the child has the opportunity to participate in proceedings. It says: “there is an increasing emphasis on the need to ensure that a child has the opportunity to participate in proceedings concerning them and the decisions that are made”. The case of CS v SBH and Ors [2019] EWHC 634 provides helpful guidance which I have taken into account.

I remind myself of the principles in paragraph 14, in particular the child’s wishes will always be conveyed to the Court by the Guardian, whether or not the child is directly instructing a solicitor, and it remains the duty of the Guardian to report the child’s wishes and feelings to the Court.

I remind myself of the checklist, which the solicitor should have regard to in assessing whether a child is competent in paragraph 15 of the guidance and note that the solicitor for the children in this case has structured her assessment around that checklist. I also remind myself of the guidance in paragraph 19 and at paragraph 23.

Having summarized the law and guidance about children being competent to instruct their own solicitor, I turn to the facts of this case. This is a difficult, long-running case, in which one child, F, has made allegations against his father of physical abuse, which the father is now convicted of in the Criminal Courts. I will have to decide in August what the long-term plans for each child are. I have heard of an increasingly difficult relationship between the children, their Guardian and their solicitor, and so I think it’s particularly important to concentrate on the question of understanding and competence, rather than people’s perceptions of one another.

I have reminded myself of the case of Swiggs v Nagarajan, very helpfully provided by Miss Wilson by e-mail during submissions, which is an employment law discrimination case, and in that case it reminds us that all human beings have perceptions, beliefs, attitudes and prejudices, on many subjects. That is part of our make-up.

Moreover, we do not always recognise our own prejudices and people may not ever be willing or able to admit to themselves that their actions may be racially motivated. I am certainly not going to make any findings about whether the children’s feelings arise out of them feeling discriminated on upon the grounds of their heritage, which is [a country in the Middle East-]ian. I do not have evidence in the bundle which would safely allow me to make that investigation, but it is a timely reminder to all of us, including myself, that we all have a set of biases, preferences and approaches to the world, which need checking from time to time.

In that regard, I note when solicitor and the Guardian meet the children, they remember it is [religious festival] and ask the children about that, and also talk about their foster carers and whether they speak [language] and the [a religious] faith that they follow.

The employment case reminds us all, particularly myself, to keep checking our approach to all individuals so that they do not have any reason to perceive that the treatment they receive from the Courts is anything other than fair and even-handed. In that respect, I apologise again to the mother for not providing an interpreter today. I have, since the adjournment, made a formal complaint to the Portal, for not providing an interpreter for her. Such administrative mistakes can, indeed, give people the impression that they are not treated equally, not equally valued compared to other litigants, and that is deeply regrettable, and I have put my complaint in the strongest terms to the Portal, reminding them of how important it is. I will update the parties when I have a response.

So, turning to each child and what I know about them, in order to carry out that assessment of whether they have the ability to instruct a solicitor in the particular circumstances of the case, having regard to their understanding. In relation to C, in my judgment of October 2024, I set out the expert assessments that we have had in this case about his particular needs. He has a EHCP plan, he has a diagnosis of global developmental delay and he has difficulty in difficulty in literacy and limited reading skills, difficulty in concentration, trouble in restoring and recalling information, social cues, reading facial expressions and maintaining friendships. I have read the update from his school and was saddened to read that he, in their view, is carrying a significant emotional burden because of these proceedings and may be struggling to comprehend and process what is going on around him. Certainly, aspects of that note school suggests he may have got the wrong end of the stick about some aspects of what has been happening in court.

In two respects, he and the Guardian agree about the way forward and are not in conflict: that he should remain at home and they are unlikely to be in conflict over the contact that the Guardian thinks should happen between the boys. The point where they depart from each other is what happens to his brothers.

C’s feelings have always been very clear. He has met me, I think, at least twice, and the Guardian has always made it clear what his wishes and feelings are. The assessment of competence that his solicitor carried out, firstly, in July 2024 and, then, in April 2025, suggests that he does not have the competence to instruct a solicitor directly. His SEN needs remain high. He is now at a Special Educational Needs school. The solicitor assessed he is more like a nine or 10 year old. He continues to have very little understanding of the issues and a very little understanding of the role of the solicitor, and is not understanding the meaning of evidence.

I look at E, and E, according to his school information, is on the SEN register and they are applying for an EHCP plan for him. What is interesting about the school disclosure, it says, if he is unhappy with a conversation, he will attempt to steer the conversation into different direction and go to the member of staff with inappropriate comments. That is not entirely dissimilar from the way that the meeting with the Guardian and the solicitor played out. The conversation ends with E, when being told the outcome of the father’s criminal trial, saying, “I don’t like liars” and hanging up.

The competency assessment notes that he was able to say more this time, but has no real interest in discussing things and clearly found talking about difficult things tricky. He was not able to engage in any real discussion, becoming upset when told about the outcome of the criminal trial. He then became angry and refused to speak further.

The assessment goes on that he has limited understanding of the role of the Judge and solicitor and had not retained this information from earlier meetings. He continues to find it difficult to talk about anything challenging and becomes upset when you do so. In the solicitor’s view, it is likely to be impacted by going through the difficult papers. There are voluminous papers in this case. E’s response to learning the outcome of his father’s criminal trial was in some ways understandable, she writes, but it was hard to see how he could fully participate and discuss key issues in a way that would not cause him extreme distress and harm.

It seems from the totality of the information that E takes on board information with difficulty at times and struggles to weigh it up and assess it against the totality of the information he has been told. It also signals a degree of emotional distress when he is unable to have a measure of agreement with people about his world view.

In relation to D, the school have noted that D recently became more guarded, has questioned why his particular learning mentor is collecting him for intervention and challenges them more frequently in conversations.

The Guardian reminds me of the meeting we had with D in December, which was a very difficult meeting, where he struggled to listen to what I had to say and to process it. I remind myself, of course, of the case of C (A Child) (Ability to instruct solicitors) and I of course should not use a meeting with a child as material to draw on when reaching my own conclusion about competence, but his presentation at that meeting was in many ways consistent with his meeting with the Guardian and his solicitor.

He is, in that instance, struggling to relate to them and ends the call by calling them “bitches”. The solicitor notes that it is becoming increasingly difficult for D and he struggles when managing his emotions. It is understandable that he is upset by the information being discussed, but his emotional immaturity and inability to manage his emotions makes discussing things difficult and taking proper instructions impossible.

She was unable to update any views he had on instructing directly without a Guardian because he ended the call and concludes he has very little understanding of the issues in the case. He was simply unable to accept the fact of his father’s conviction and, of course, when I look at his understanding an acceptance of the existence of a criminal conviction (whether he agrees with it or not) is key, I think, to processing information and providing instructions.

The solicitor is of the firm view that whoever had the discussion with him would need to discuss the topics like the father’s conviction and the final care plan, and the risk to his welfare from doing so would be high, in the solicitor’s view. The solicitor concludes that D is not competent and has very little understanding of the reasons why he is in foster care and the role of the Judge, which is saddening given that I have met him now twice.

Drawing all of those things together, I have to ask myself whether an expert assessment is necessary to assist the Court in resolving proceedings justly. I look at the impact that giving permission would have on the welfare of the children. None of them have, in and of themselves, expressed the wish to instruct a solicitor directly. Well, of course, given their ages and understanding, I would not expect them to have an understanding of that possibility. But it seems to me that, from the assessments of the solicitor for the child, there is an extent to which they struggle emotionally to process what is going on in these proceedings. Having to meet another professional and give instructions to them, or having the burden of instructing directly as a prospect, may have in impact on their welfare, but I remind myself of the authorities, which says that the focus should be on their understanding.

The issues to which the expert evidence relate would be those in paragraphs 19 of the Competency Guidance of the Family Justice Council and the questions which the Court would require the expert to answer are set out there. One of them is whether the child has sufficient understanding of the pertinent issues to conduct proceedings and weigh the consequences of their instructions. It seems to me that from the assessment of the solicitor that answer is already quite clear on the evidence before me: they really do struggle with that.

I look at whatever expert evidence is available. I have got Dr Woolfson’s report, although it is not expert evidence, I have the school’s report and, of course, I have the Guardian’s analysis and social worker’s statements and the solicitor for the child’s two assessments. They provide evidence of the children’s understanding. I have my October 2024 judgment in which I set out the welfare checklist analysis for each child. I also gave a judgment on competence in October 2024.

I know that Dr Blackburn can report in four weeks, which means that, technically, the final hearing could be retained, although I do take on board the submissions about the practicalities of having that short period at the end should the children be found to be competent to find alternative representation and I think there is a real risk that, if there are any delay in the instruction, regardless of the outcome, that the final hearing would be at risk, and of course these proceedings have been going on since 2023. We are in week 104 and we are all familiar with the “no delay” principle. No explanation was given for the delay in making this application, save for that the solicitors for the father were waiting for instructions.

I have found this a very difficult and, at times, concerning decision to make, but it seems to me, having taken that assessment of the children’s understanding, it is very clear to me that it is not necessary to have an expert to resolve these proceedings justly and that the solicitor’s assessment, going through the Family Justice Council guidance with care, does not mean that there is a gap in the evidence requiring the view of the expert. The assessments re comprehensive and consistent with the totality of the evidence.

That said, I am left with a lingering concern that the children and the father do not perceive proceedings as being just, and of course I want to resolve the proceedings justly. The importance of children’s wishes and feelings and their need to be heard I think is the motivation behind the application, which I would never seek to criticise. It is so important that these children, who do come from a [a country in the Middle East-]ian heritage, do not feel out of place in UK society. They should feel that they are fully engaged in, heard and supported and understood in these proceedings, regardless of what the outcome is.

I cannot see an obvious way of making relationships easier at this particularly tense time in proceedings, but I think we all probably have a role in trying to work together to make sure that this final hearing is prepared in such a way that enables the children to feel heard and feel part of it and that duty falls on each and every one of us, whether we are the family, the professionals or the Judge.

For my part in that, and my responsibility, what I would suggest is as follows: I have met the boys on several occasions. I have written them letters in plain language which has tried to explain to them the decisions I have made, which I know that they may disagree with. I think the best that I can think of is to offer to meet them again, either individually or as a group, and to hear from them directly their frustrations, their feelings about the process and their wishes and feelings, acknowledging that those may not be comfortable meetings, but that certainly is never the point. The meeting is not for the benefit of the Judge but for the benefit of the children.

I do not know who is instructed in the final hearing, whether it is Mr Drayton who has, I think, met the children before, met C out of court, when everyone was waiting, and I think met the younger two boys when they came to see me. I wonder if it might be wise for him to have a meeting with them before they meet me, so that they can impress on him what they would want me to hear and understand when he makes his submissions. I suggest that he is present in the meetings with me so the boys know that he has got the message and can make submissions on their wishes and feelings to me.

The Guardian, I will leave it to her professional discretion as to whether she should be in those meetings or not. She will be able to take the emotional temperature outside court. I do not know if it is helpful give Mr Drayton the mouthpiece role at the meeting with me and for her to step back for a bit. I will leave them to decide the best way to support the boys with the meeting. There will be the note in the usual way for transparency purposes and record the meeting. I wonder if that just takes the heat out of the situation? Mr Drayton is somebody who they have met before, but is maybe less caught up in their perception of who is who in this case, and can be seen as a neutral, independent voice, because he will be the one on the feet in the proceedings.

The Guardian has always expressed the children’s wishes and feelings very clearly, even when they are not in keeping with her own, but we need to find a mechanism to reassure the boys that that is the case, that I do hear them and I do take their points of view seriously.

I am so sorry for going on so late, but I will take any corrections or clarifications, and then any other case management matters.