Rules to be ‘simple and simply expressed’

A judicial review pre-action protocol letter for children proceedings

This is a fictional judicial review pre-action protocol letter by the solicitor of a child, Clara, aged almost 13-years-old. Clara wants to be involved her parent’s Children Act 1989 (CA 1989), s 8 proceedings. The solicitor has assessed her as having sufficient understanding (CA 1989, s 10(8)). She cannot understand the rules; and he is finding his way uncertainly. A draft PAP letter is here.

Family Procedure Rules 2010, Pt 16 deals with representation of children in family proceedings. The solicitor is trying to advise Clara on the rule which apply to her; but he also feels it is time to draw to the Family Procedure Rules Committee (FPRC) the complexity of the rules which he and Clara are trying to negotiate.

1 Proposed claim for judicial review

Minister for Justice (Lord Chancellor)

2 The claimant

SB solicitor advocate of ***. I believe I have a sufficient interest in what follows as a practising family lawyer. I am on the Law Society Children Panel. I have a child client in Children Act 1989, Pt 2 (sometimes called ‘private law’) proceedings affected by the complexity of the family court rules.

3 The defendant’s reference details

4 The details of the claimants’ legal advisers, if any, dealing with this claim

Government Legal Department

5 The details of the matter being challenged

By reference to Courts Act 2003, s 75(5), parts of Family Procedure Rules 2010 (FPR 2010) are unlawful. For the purposes of the present challenge the illegality rests upon FPR 2010, Part 16, especially bearing in mind that these rules must be read and understood children who are of intelligence and understanding (see eg Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224; CA 1989, s 10(8); FPR 2010, r 16.6).

The proposed challenge is as to the complexity of FPR 2010. This PAP letter concentrates on Pt 16 (representation of children), as detailed in para 7 below and as regards Clara. In Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 Black LJ said:

‘[18] There was some divergence of view [amongst lawyers in court] as to which precise part of Rule 16 FPR 2010 should be the focus of the court’s attention; [though there was] agreement as to the “test” that determined whether or not FW was entitled to be separately represented. I should make clear that when I speak of FW being separately represented, this is a loose term not entirely reflecting the complexity of the scheme under section 41 of the CA 1989 and Rule 16 FPR 2010. What I seek to convey by it is a situation in which FW separates from the children’s guardian appointed to represent her interests, and gives her own instructions to a solicitor, as occurred in the original care proceedings. Often a separation of this type results in the child instructing the solicitor originally appointed by the guardian, and the guardian operating separately but, for good reasons, that was not the way in which things were organised during the care proceedings in this case and, in the recovery/discharge proceedings, FW wished, of course, to go back to the solicitor who had represented her before. That was the objective of her application under Rule 16.29(7).’

CA 1989, s 41 deals with care proceedings. Attention to CA 1989, Pt 2 is necessary here, since Pt 16 and PD16A intermingle the provisions of child representation in CA 1989, Pts 2 and 4, and under wardship and Child Abduction and Custody Act 1985 proceedings.

A child may be represented by a solicitor without a guardian; or alone. Application is under CA 1989, s 10(8). If Lady Black (a children lawyer of many years’ experience) finds this scheme one of ‘complexity’ it is difficult to imagine how the Committee expects a child to understand it.

6 The details of any Interested Parties

None specific to this point

7 The issue

‘Simple and simply expressed’

The statutory provisions which empower the committee are Courts Act 2003, ss 75-76. As relevant to this application s 75(5) says:

(5) Any power to make [FPR 2010] is to be exercised with a view to securing that—

(a) the family justice system is accessible, fair and efficient, and

(b) the rules are both simple and simply expressed.

Black LJ’s comment as to ‘complexity’ assents to a judicial view that the scheme may not be s 75(5) compliant and – if that is right – then it is unlawful.

Clara is almost 13-years-old. Her parents disagree about with whom she should live. She wants to live with her mother. A judge at first instance took it upon himself to refuse to let her instruct me; to order a report under CA 1989, s 7 (for which a Cafcass officer was appointed, who treated her appointment as also under r 16.4). The judge appointed a solicitor (SA) for the child, though I cannot see on what legal basis. SA refused to represent the child’s views to the court (despite the terms of r 16.29(2)); and when Clara wanted separate representation SA refused to accept Clara’s termination of her retainer.

The judge decided that the child should live with her father. The child wishes to appeal. She has no lawyer, save where a solicitor will act paid by a third party (ie without legal aid). She has a legal aid certificate but the nominated lawyer refuses to represent her wishes. If the solicitor is right her right to choose her own representation is blocked.

Examples of where in this case Pt 16 is not compliant with s 75(5) include:

Assessment of ‘understanding’

The circuit judge in Clara’s case made no attempt to assess Clara’s understanding. He just refused my application for her. He ignored Practice Direction of 22 February 1993 (Applications by children: leave), [1993] 1 WLR 313, [1993] 1 FLR 668 which says this sort of application should be dealt with by a High Court judge. How an application like Clara’s proceeds is fully explained by Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA. The circuit judge refused to consider Re CT.

So who assesses understanding in relation to s 10(8) and r 16.29(2) (where a child parts company with a children’s guardian)? And what safeguard is there if a child says she is has ‘understanding’ in r 16.29(2) terms? In Clara’s case the children’s guardian with the nominated solicitor says Clara does not have sufficient understanding to be independently represented (as in eg Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027). Does the child have any recourse to a second opinion? Not as the rules stand. She should have. (In this area the challenge develops into questions of European Convention 1950, Arts 6 and 8, as well as United Nations Convention on the Rights of the Child 1989, Art 24; all of which will be expanded if application for judicial review becomes necessary.)

Which judge; which court?

Is the above Practice Direction still in force? It is approved by Re CT. If it is no longer in force it should be formally revoked, surely? Is this for FPRC to do; or is it for the current President of the Family Division? The Minister of Justice must please decide.

‘Simple and simply expressed’?

Clara’s case is but one example of the complexity of these rules; and if they are complex, this is unlawful per s 75(5). More generally much needs to be done to make it possible for children to understand Pt 16; especially if they are told they cannot have separate representation since they are not of ‘understanding’. If ‘understanding’ was judged by a child’s understanding of FPR 2010, Pt 16 that would be harsh indeed. Set the bar too high and a child is bound to fail an ‘understanding’ test.

8 The details of the action that the defendant is expected to take

To submit proposals for what the Committee is willing to do to radically to reform FPR 2010 Part 16; and to state precisely what steps it proposes to make Pt 16 compliant with s 75(5) and in such a form as children over 13 can understand.

9 ADR proposals

10 The details of any information sought

11 The details of any documents that are considered relevant and necessary

12 The address for reply and service of court documents

All not applicable

13 Proposed reply date

Four weeks from the date of this letter.