[2011]JRC054
royal court
(Samedi Division)
11th March 2011
Before : |
M. C. St. J. Birt, Esq., Bailiff, and Jurats Le Breton and Morgan. |
IN THE MATTER OF Q
Advocate V. Myerson for the Minister for Health and Social Services.
Advocate D. Gilbert for Q.
Advocate T. V. R. Hanson for the Guardian of Q.
Advocate C. Hall for the Mother.
judgment
the bailiff:
1. This judgment is concerned with whether Q should continue to be separately represented by an advocate in circumstances where her views as to the desired outcome of care proceedings issued by the Minister differ from those of the Guardian appointed to represent her.
2. At the conclusion of the hearing the Court held that she should continue to be represented by her own advocate. Subsequently, following a contested hearing, the Court granted a final care order. We now give our reasons for maintaining Q's own legal representation.
The Background
3. Q is a girl who attained the age of 14 in December 2010. She was therefore 13 years 8 months at the time of the hearing in September 2010.
4. On 27th November 2009, following presentation of an application by the Minister for a care order in respect of Q, the Court appointed Mrs Jane Ferguson as Guardian under Article 75 of the Children (Jersey) Law 2002 and also appointed an advocate for Q.
5. On 1st December 2009 the Court made an interim care order in favour of the Minister. Advocate Gilbert appeared for Q. It became apparent during the hearing that there was a difference of opinion between the Guardian and Q as to whether the making of an interim care order was appropriate. Advocate Gilbert spoke to put forward Q's views opposing the order on the basis that she considered that Q was of sufficient understanding to give instructions.
6. On 29th January 2010 the Court granted the Minister's application that a secure accommodation order be made. Again there was a difference of opinion between the Guardian and Q and Advocate Gilbert again put forward the views of Q opposing the making of such an order.
7. In the light of the clear differences of opinion which were developing between the Guardian and Q, the Court appointed Advocate Hanson to represent the Guardian on 2nd February 2010 leaving Advocate Gilbert to represent Q. Since then there have been many hearings. Thus the secure accommodation order was renewed on 29th April and 28th July 2010 and there have been a number of hearings in the care proceedings. At all the hearings, Advocate Gilbert has represented Q and Advocate Hanson has represented the Guardian.
The application
8. The hearing of the application for a final care order was fixed to commence on 5th October 2010. In preparation for that hearing, a psychological report had been requested from Dr Bryn Williams. Dr Posner of CAMHS had earlier expressed concern as to the effect upon Q of her direct involvement in the proceedings. Accordingly the parties attempted to agree a supplemental set of instructions to Dr Williams asking for his opinion, but some confusion arose as to whether what was required was an opinion on Q's competence or on whether her involvement in the proceedings was adversely affecting her welfare and it did not prove possible to agree detailed instructions prior to Dr Williams producing his report on 28th July. However Dr Williams had been alerted informally to the matter and included a final paragraph 8.10 in his report as follows:-
"With respect to the question of Q being competent to give instructions to her own Advocate I am firmly of the view that Q is not competent. I understand that the criteria for determining competence was based on the Gillick threshold which is not a useful benchmark in many psychological issues as it is related to physical health. Whilst the cognitive assessment indicates Q is of normal cognitive ability, throughout the assessment she has demonstrated significant emotional immaturity, her responses are ambivalent and she does not have the maturity to assess risks to personal safety. Her early abusive experiences have compromised her trust in relationships and she does not make decisions and interactions with others that are commensurate with her chronological or intellectual age. To allow Q to make independent decisions about her parenting needs fails to take account of her vulnerability. Furthermore, empowering her with this role is in my opinion potentially abusive as it places her in a position where she believes her views are credible and equal to that of adults and yet takes little account of the bad choices she makes. I do believe Q's wishes and feelings should be taken into account, but do not believe she has the requisite skills to determine her parenting needs and the reparative work that is required to prepare her for adulthood."
9. Following receipt of that report, Advocate Gilbert issued an application seeking a ruling on whether Q was competent to continue to instruct her advocate. It was that application which came before the Court and was heard over two days on the 8th and 15th September, only a few weeks before the final hearing fixed for 5th October.
10. The Minister and the Guardian both submitted that Q should not be represented by her own advocate but should be represented through the Guardian. Their grounds for so arguing were a mixture of concerns as to whether she was competent to instruct her own advocate and also the welfare considerations referred to by Dr Posner and Dr Williams. Advocate Gilbert, on behalf of Q, argued that Q was competent to instruct an advocate and that it would be contrary to her welfare to withdraw that representation at such a late stage in the proceedings.
11. The Court heard oral evidence from Dr Williams. It was fairly discursive and covered a number of areas. We intend no disrespect when we say that it was not always entirely clear whether, when making a particular point, Dr Williams was saying that, as a result, Q was not legally competent to instruct an advocate or whether he was saying that, because of the particular factor, it would not be in the interests of her welfare to allow her to do so.
12. He accepted that, as shown by the cognitive and educational assessment carried out by Kathryn Robinson, Q fell within the average range of cognitive ability. Thus she could understand what was being put to her and express her views. However, he said that it was not simply a question of cognitive intelligence; a child also had to have emotional intelligence, by which he accepted that he meant the ability to form a balanced judgment as to what was in her best interests. He did not believe that Q had the necessary emotional intelligence to instruct her own advocate.
13. He went on to say that one of the problems with Q was that she was very powerful and that was why she was out of control. She felt that she was in control of all those around her. Allowing her to have representation by her own advocate was reinforcing that sense of powerfulness and was not good for her. It would make the therapeutic work which had to be done more difficult. When pressed by the Court, he said that the main area of his concern related to questions of welfare rather than of competence. Thus at page 10 of the transcript the following is recorded:-
"Bailiff: But what I need to be clear about, and I think the Court needs to be clear about, is are you saying that she does not have sufficient understanding to instruct a lawyer or are you saying that it would be emotionally damaging to her to be put in a position of instructing a lawyer?
Dr Williams: Yeah, it's that latter position.
Bailiff: The two are very different.
Dr Williams: Yeah, it's the latter position that particularly worries me about this young person."
14. Later, at the conclusion of his evidence the following exchange took place:-
"Bailiff: Can I just try and make sure I've absolutely got your evidence? The essential test is whether the child has sufficient understanding to instruct a lawyer. Now that means firstly, obviously, sufficient intelligence to understand what's going on. Everyone agrees that she has that. But it's clear that some children are so emotionally damaged that they don't have the other equipment, call it emotional intelligence, to instruct a lawyer. That can't mean that you can only instruct a lawyer if your decision is a very wise and sensible one because at 14 large numbers of very competent children will in fact not reach the right conclusion about what is best for them,-----
DR WILLIAMS: Absolutely.
BAILIFF: -----it's a definition of age. So the test of sufficient understanding can't be if she knows what is best for her, it's got to be a lower one than that. Are you saying that Q does not have sufficient understanding to instruct a lawyer and if so exactly why? Or, are you saying yes she has got sufficient understanding, but it would be bad for her, because it will reinforce her sense of power, and this is all sending the wrong messages which is bad for her future? In other words, are you founding your objection on welfare grounds, this is a bad thing to do for her, or are you founding on the basis that she does not have sufficient understanding to instruct a lawyer?
DR WILLIAMS: I think the first argument is the stronger one for me, that's it's her understanding of what powers you've given her are, have been damaging to her and continue to be.
BAILIFF: So it's a welfare point?
DR WILLIAMS: What she has, understands from what you're giving her-----
BAILIFF: Yes.
DR WILLIAMS: -----she doesn't have the skills, like you and I do, to understand what that means. Yes she has-----
BAILIFF: Sorry, when you said the first, do you mean it's a welfare point therefore-----
DR WILLIAMS: That it is a welfare point.
BAILIFF: Yes. It would be bad for her in the sense of reinforcing her sense of powerfulness.
DR WILLIAMS: Autonomy, yes.
BAILIFF: Autonomy.
DR WILLIAMS: Yeah.
BAILIFF: Do you, is it your professional opinion that she has insufficient understanding to actually instruct a lawyer?
DR WILLIAMS: She has the requisite intelligence and the verbal skills and language to be able to tell people what she feels, very much in the short and medium term about what she needs. What I don't think she does possess, because of her experiences and because of who she is at the moment, and because of the crisis going on in her life, she does not have, and this is kind of less so but the second point you're making, she doesn't, for me, have the overall capacity to be involved in this process in the way in which the powers that are given her have left her feeling enabled to do, she just doesn't have that. She changed her mind so many times with me. And when we get to the next part of the proceedings about the evidence, the ambivalence about her family situation is, you know for me as a psychologist it's interesting that the Court process is mirroring the very thing that's going on in her family. "You have got a voice Q, but actually we won't, we can't do that for you." And she does that at school, she does it in Heathfield, she does it in secure, she does it in this courtroom and as a psychologist it's fascinating that this child has managed to get herself and us into this Court this morning for this discussion."
15. Dr Williams was also pressed on the fact that Q had had legal representation throughout and that it was now only a few weeks before the main hearing at which her future would be decided. He accepted that, given that she had had legal representation, this was a concern and it would be a little counter-intuitive to remove that voice shortly before the hearing, but on balance he felt it would be better for her as it would emphasise that she was not powerful in the way she thought she was.
16. In summary, our understanding of Dr Williams's evidence was that his primary concern related to her welfare. He felt that giving her a voice through her own advocate reinforced her sense of powerfulness and this was contrary to her interests because that was one of her underlying difficulties. He accepted that she would still have a voice through the Guardian but felt that a direct voice through an advocate would be more damaging. He acknowledged the difficulty in withdrawing representation so close to the main hearing but believed on balance that it would still be better to do so. As to competence, he accepted that she had the intellectual equipment to give instructions but he was concerned at her lack of emotional intelligence, which is why she was getting into such difficulty in her life. He doubted that she had the necessary emotional intelligence to give sensible and consistent instructions to her advocate.
The legal principles
17. The issue with which we are concerned has not arisen previously in Jersey. We were accordingly referred to relevant authorities from England and Wales. It is clear that there has been a change of approach in that jurisdiction and that, whereas previously considerations of welfare of the child played a large part in considering whether the child was of sufficient understanding to instruct an advocate, more weight is now given to the need for a child to feel that his or her views have been properly communicated to the court.
18. The previous approach is perhaps exemplified in the observations of Thorpe J in Re H (a minor) (care proceedings: child's wishes) [1993] 1 FLR 440. That case involved a boy of 15. In the hearing before the magistrates, it had become clear that the solicitor representing the child was getting diverse instructions from the child on the one hand and the guardian on the other. Rule 12(1)(a) of the Family Proceedings Courts (Children Act 1989) Rules 1991 provided:-
"A solicitor appointed ... shall represent the child ... in accordance with instructions received from the guardian ad litem (unless the solicitor considers, having taken into account the views of the guardian ad litem and any direction of the court ... that the child wishes to give instructions which conflict with those of the guardian and that he is able, having regard to his understanding, to give such instructions on his own behalf, in which case he shall conduct the proceedings in accordance with the instructions received from the child)..."
19. On appeal, Thorpe J held that the solicitor had been wrong to represent both the guardian and the child and the child should have had his own legal representation. In passing Thorpe J said this at 449:-
"I have reached the conclusion that Mrs Malcolm is technically right in her submissions. I think that she puts her case too high by suggesting that almost any child of 15 years and 8 months must be taken to have sufficient understanding to instruct a solicitor. 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."
Later at 450 he said:-
"It seems to me that in these cases involving intelligent, articulate but disturbed children it is necessary for the court to apply RR 11 and 12 realistically to ensure that not only is the professional voice of the guardian heard through an advocate's presentation, but that also the wishes and feelings of the child, however limited the horizon, should be similarly presented. If there is any real question as to whether the child's emotional disturbance is so intense as to destroy the capacity to give coherent and consistent instructions, then I think that question should be the subject of specific expert opinion from the expert or experts who are already involved in the case."
20. However, as mentioned earlier, there has been a change of approach in the United Kingdom. Mabon v Mabon [2005] 2 FLR 1011 involved private law proceedings concerning contact arrangements for children aged 17, 15 and 13. The facts were therefore very different from the present case. However, Thorpe LJ, with the specific agreement of the other two members of the Court of Appeal, had some important remarks to say about the changing approach. We quote the following extracts:-
"25. ... In our system, we have traditionally adopted the tandem model for the representation of children who are parties to family proceedings, whether public or private. First, the court appoints a guardian ad litem, who will almost invariably have a social work qualification and very wide experience of family proceedings. He then instructs a specialist family solicitor who, in turn, usually instructs a specialist family barrister. This is a 'Rolls Royce' model and is the envy of many other jurisdictions. However, its overall approach is essentially paternalistic. The guardian's first priority is to advocate the welfare of the child he represents. His second priority is to put before the court the child's wishes and feelings. Those priorities can in some cases conflict. In extreme cases the conflict is unmanageable. That reality is recognised by the terms of r9.2A. The directions set by r9.2A(6) is a mandatory grant of the application provided that the court considers 'that the minor concerned has sufficient understanding to participate as a party in the proceedings concerned'. Thus the focus is upon the sufficiency of the child's understanding in the context of the remaining proceedings.
26. In my judgment, the rule is sufficiently widely framed to meet our obligations to comply with both Art. 12 of the UN Convention and Art. 8 of the European Convention, providing the judges correctly focus on the sufficiency of the child's understanding and, in measuring that sufficiency, reflect the extent to which, in the twenty-first century, there is a keener appreciation of the autonomy of the child and the child's consequential right to participate in decision-making processes that fundamentally affect his family life. ...
28. The guidance given by this court in Re S (a minor) (independent representation) [1993] Fam 263, ... on the construction of 9.2A is now 12 years old. Much has happened in that time. Although the UK had ratified the UN Convention 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 26th 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 Art. 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. The 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. ...
32. In conclusion, this case provides a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally. The FPR are sufficiently robustly drawn to accommodate that shift. In individual cases, trial judges must equally acknowledge the shift when they make a proportionate judgment of the sufficiency of the child's understanding."
21. That change has been reflected in public law cases. Thus is Re K and H [2007] 1 FLR 2043, Thorpe LJ in the Court of Appeal pointed out how impossible it was for two boys aged 13 and 11 to feel that their wish to remain at home with their father was being adequately conveyed to the court whilst being represented by a guardian and lawyer who were, in accordance with the views of the guardian, urging removal from the father's home. He criticised a solicitor for not taking instructions from the older boy directly although he accepted that the younger boy was too young and should continue to be represented by the guardian.
22. It is important to appreciate that all of the English decisions were made in the context of rules of court which provided that, if there was a conflict between the views of the guardian and those of the child, the solicitor had to act on the instructions of the child if the child was of 'sufficient understanding'. This no doubt led the courts to try and squeeze concepts of welfare into the concept of 'sufficient understanding'.
23. That is not the position in Jersey. As was made clear in Re KK [2010] JRC 220 (after consideration of Re B [2010] JRC 150) it is Article 75 of the 2002 Law which deals with the appointment of both a guardian and a lawyer. Both appointments are discretionary, unlike in England and Wales. Thus, unlike in that jurisdiction, there is no obligation for a lawyer to be appointed even where the child is of sufficient understanding.
24. In our judgment, given the very different statutory background, and given the need always to have regard to the welfare of a child in all public and private law proceedings concerning children, this Court can adopt a somewhat more flexible approach than in England and Wales when the views of the guardian differ from those of the child. In such cases the Court should ask itself two questions:-
(i) Is the child of sufficient understanding to give instructions directly to his or her lawyer? Clearly if not, that is the end of the matter and the lawyer will continue to act on the instructions of the guardian, with the guardian fulfilling his duty to convey the wishes and feelings of the child to the Court notwithstanding the different view of the guardian as to where the child's best interests lie.
(ii) If the child is of sufficient understanding, the Court should go on to consider whether welfare considerations lead to a conclusion that the child should nevertheless not be authorised to instruct his or her lawyer direct, so that the lawyer continues to take instructions from the guardian.
25. In reaching a decision on both of these aspects, the Court should take into account the changing climate of opinion as to the importance of the autonomy of the child as described in Mabon and summarised in the passages cited at para 20 above.
26. We should add that we have not ignored the submission put forward by Advocate Hanson in his closing submission on behalf of the Guardian to the effect that the guardian in family proceedings is in fact appointed under Rule 4/2 of the Royal Court Rules and that therefore there is no provision for the lawyer to act on any instructions other than those of the guardian. However, we agree with the judgment in Re KK to the effect that, although the Article does not refer in terms to a 'guardian', it is under Article 75 that the person conventionally called a guardian in family proceedings is appointed, not Rule 4/2. Advocate Hanson argued as a fallback that, if a guardian is appointed under Article 75, it is under Article 75(1)(a) rather than 75(1)(b), as a guardian's role goes well beyond that of 'assisting and befriending', which is the wording used in Article 75(1)(b). Re KK held that a guardian is appointed under Article 75(1)(b). We have not heard detailed argument on whether the appointment is under 75(1)(a) or 75(1)(b) and it is not necessary for us to resolve the issue. It is sufficient to confirm that the appointment of a guardian is pursuant to Article 75 and therefore a child's lawyer may take instructions from the child rather than the guardian in the circumstances described in this judgment.
27. We turn therefore to consider what is meant by 'sufficient understanding' or, as it is sometimes described, 'legal competence'. What is clear is that the test is not the same as that known as 'Gillick competence'. The level of understanding that enables a child to make an informed decision whether to submit to medical treatment or to a psychiatric examination is a much higher level of understanding than is required to enable him to give instructions to a lawyer on his own behalf (see Thorpe J in Re H at 449).
28. Some guidance (which we would endorse) is to be found in a booklet entitled 'Good Practice in Child Care Cases' published by the Law Society of England and Wales:-
"4.5 Assessing Understanding / Competence to give instructions
4.5.1 From the outset, and throughout the case, the solicitor should be alert to the child's level of understanding and capacity to give instructions about the case.
4.5.2 In practice, a decision on the child's capacity and ability to give instructions will need to be made where a conflict arises or is likely to arise between the child and the children's guardian.
4.5.3 This can be assessed on the basis of the child's age and ability to understand the nature of the proceedings and to have an appreciation of the possible consequences of the applications before the court, both in the long and short term.
Philip King and Ian Young in The Child as Client (Family Law, 1992) provide a useful checklist:
'To be competent, the child should understand the following (which should not be regarded as exhaustive):
· the solicitor's role
· the nature of the proceedings in respect of which the child is subject
· the reasons for the proceedings
· what takes place at court
· what other professionals think is best for the child
· what the child's parents and the other parties to proceedings think is best for the child
in care proceedings, the analysis of the Children's Guardian and the threshold criteria which must be proved.'"
29. While the decision as to competency is ultimately a matter for the court, assisted if necessary by expert evidence, much weight should be given to the views of the lawyer who is taking instructions from the child. Thus in Re M (Minors) (Care proceedings: child wishes) [1994] 1 FLR 749, Wall J said this at 755:-
"Equally, I acknowledge that the decision about representation of the child under the Family Proceedings Rules 1991 at 4.11(3) is a matter for the child and the solicitor instructed, provided the latter is satisfied that the child is capable of giving coherent and consistent instructions. Thus the circumstances in which the court would either wish or be able to interfere with the decision of a child and his solicitor to seek separate representation from the guardian ad litem will be limited. The question of the guardian's separate representation is, however, a matter for the court and should, as I have said, be a matter for a summons for directions if and when it arises.
The question has been raised in this case as to the level of understanding required for a child's separate representation and how that is assessed by the solicitor. I have not heard full argument on the point, and it is a field into which it would be quite wrong for me to trespass without full argument and, possibly, expert evidence. On the whole, however, my experience is that the courts in public law cases are content to rely on the good sense and expertise of local solicitors who (as this case demonstrates) are developing a keen sense of a child's competence or otherwise to give instructions."
30. This approach is reflected in the guidance given in 'Good Practice and Childcare Cases' where the following is to be found:-
"4.5.6 In the first instance, it is the duty of the solicitor, not that of the children's guardian, to assess a child's understanding, although advice can be sought from the children's guardian. If there is conflict on the issue of competence the court will make the final judgment and it may be necessary to produce evidence where the court is minded to make a different judgment to the solicitor. ..."
31. What is also clear is that, in order to have sufficient understanding to be permitted to instruct a lawyer independently of the guardian, a child does not have to have sufficient judgment and wisdom to know what is best for that child. The fact, for example, that the child wishes to oppose an application by the Minister to remove the child from the care of his parents when the evidence that the parents are unfit to look after him is fairly overwhelming, does not of itself suggest that the child does not have sufficient understanding to instruct a lawyer. After all, in such cases, the parents themselves will often be opposing the Minister's application but no-one suggests that that fact suggests that they are not legally competent to instruct their lawyers accordingly. The Court is familiar with cases in all sorts of areas where the instructions given by parties do not appear to have great logic or reasoning behind them but are perhaps driven more by strong emotional feelings. The test is whether the child understands what is involved and is able to give coherent (rather than correct) instructions.
Application to the facts
32. With that introduction, we turn therefore to consider whether Q has sufficient understanding to continue to instruct her advocate. We have no hesitation in concluding that she has and we would summarise our reasons as follows:-
(i) Advocate Gilbert has represented Q continuously since December 2009 and has represented her separately from the Guardian since early February 2010. She is therefore in an excellent position to assess whether Q understands the proceedings and the issues involved sufficiently to give coherent instructions. She is quite satisfied that Q has such understanding. As the authorities and texts referred to earlier make clear, this is a significant factor.
(ii) As Advocate Gilbert pointed out, Q has not blindly opposed every application by the Minister without apparently giving it any thought. Thus on two occasions, contrary perhaps to her wishes, namely the renewal of the secure accommodation order on 29th April and the most recent renewal of the interim care order prior to the hearing, she had the rationality required to give realistic instructions to agree to what was proposed by the Minister.
(iii) So far as the Court is concerned, although it has had no direct dealings with Q, the arguments put forward on her behalf by Advocate Gilbert, whilst not often finding favour with the Court, have not been such as to raise any concerns on the part of the Court as to the rationality of the instructions being given and therefore whether Q is competent to instruct her own advocate.
(iv) Q is nearly 14 and has been assessed as having average cognitive ability. The cognitive and educational assessment of Q reported on by the psychologist Kathryn Robinson on 26th April 2010 included the following findings:-
"6.1.1 The cognitive assessment highlights that Q falls within the average range of ability, with her area of strength being her processing skills, and verbal skills.
6.1.2 The educational assessment confirms her cognitive skills and educational attainment are commensurate. There are, however, areas of weakness in some mathematical concepts and comprehension. ...
6.2.1 When considering the weight of evidence directly available to this assessment, there are strong indications that Q is appropriately placed at [blank] school. She has both the cognitive and educational ability to access the lessons. Indeed, she has been described as 'outstanding' for both effort and attainment by some of her teachers.
6.2.2 Her full scale Intelligence Quotient of 86 places her within the average range cognitively. This places her well within the middle band (25th out of 100) when compared with other [blank] school students. ...
6.2.5 Q is capable of reflective thinking. She is able to reason issues through. Although if too much is expected of her, her instinct is to run away."
(v) The first person to raise any concerns over Q's continued separate legal representation was Dr Posner, but her concerns were entirely welfare related i.e. was it damaging to Q?
(vi) The first person to raise concerns in relation to competence was Dr Williams at paragraph 8.10 of his report of 28th July. However, we have to say that both in that passage and in his evidence, there appeared to be a certain degree of intermingling of issues of competence and issues of welfare. We can well understand this as Dr Williams was clearly of the view that it was not in Q's best interests to have separate representation. But when pressed as to why he considered she was not legally competent, his evidence was that while she had sufficient cognitive ability, her emotional intelligence was much lower than her chronological age. He gave as examples that she did not have the maturity to assess risk to her personal safety and did not make decisions about her life and her safety which were commensurate with her chronological or intellectual age. However, it seemed to us that ultimately he was saying that she did not have the ability to know what was best for her and was likely to have reach an ill judged conclusion as to what was best for her. That is not the correct test for whether she has sufficient understanding to instruct an advocate, as pointed out above. The fact that she may wish to argue for an outcome which is not in her best long term interests does not mean that she does not have sufficient understanding to appreciate what is involved in all material respects and to give instructions to her advocate as to what she would wish to happen. It is for the Court, assisted by the views of the guardian and experts, where appropriate, to decide what is in fact in her best interests.
(vii) In her report of 26th August, the Guardian supported the views of Dr Williams. However, the majority of her reasons for reaching the conclusion that Q should not continue to instruct her own advocate are related to welfare grounds. In relation to competence, the sole ground relied upon in the Guardian's report is that Q's choice of reckless behaviour necessitating the secure accommodation orders does not suggest that she has the emotional capacity to understand and participate in the proceedings by instructing her own lawyer.
(viii) In summary, one has the position of a girl approaching 14 who has apparently instructed her own advocate quite satisfactorily since these proceedings began at the end of 2009 and where the only ground for questioning her competence (as opposed to her welfare) rests on the fact that she is clearly out of control in her personal life and is unlikely to know what is best for her long term interests. We do not consider that this is enough to lead to a conclusion that she does not have legal competence. On the contrary, we are satisfied that she does have sufficient understanding to continue to instruct her advocate.
33. We turn therefore to consider whether, despite finding that she has sufficient understanding to instruct her own advocate, we should nevertheless terminate that representation on the grounds that it is contrary to her welfare. In this respect we have of course paid close attention to the evidence of Dr Williams (supported by the guardian) who is of the opinion that it would be contrary to her best interests because it would reinforce her sense of powerfulness. However, we have concluded that, on the facts of this particular case, such considerations do not lead us to conclude that we should revoke her representation at this time. We would summarise out reasons as follows:-
(i) Rightly or wrongly, Q has been instructing her own advocate since February 2010 at which time the Guardian was given separate legal representation. At the date of the Court's decision, the final care hearing was imminent. That would be a hearing of enormous importance to Q and would determine her future, including who would be responsible for her. The Court has real concerns that to remove her legal representation at such a late stage would be extremely damaging to her confidence in and acceptance of the judicial process. Just at the time when she most needed to be assured that her views would be taken into consideration, she would lose her direct voice to the Court. Dr Williams accepted that removal at such a late stage was counter-intuitive and was of concern to him.
(ii) This concern is consistent with and reinforced by the sentiments expressed in Mabon referred to above. The comments of Wall LJ at para 43 of that case can be transposed directly to the present case:-
"My difficulty with that approach [i.e. that the boy's arguments could be advanced by the guardian] is that the judge seems to me, with all respect to him, to have perceived the case from the perspective of the adults. From the boys' perspective, it was simply impossible for the guardian to advance their views or represent them in the proceedings. He would, no doubt, faithfully report to the judge what the boys were saying but the case he would be advancing to the judge on their behalf would be (or was likely to be) directly opposed to what the boys were actually saying.
44. In these circumstances, I do not agree with the judge that the only advantage from independent representation was 'perhaps the more articulate and elegant expression of what I already know'. That analysis overlooks, in my judgment, the need for the boys, on the facts of this particular case, to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented and their perspective fully advanced to the judge."
(iii) Notwithstanding the sincerity with which his views were put forward, we had some difficulty in accepting Dr Williams's evidence as to the harm to Q's welfare which would be caused by continued legal representation. He accepted that her views should of course be put to the Court and that she should know that her views were being put forward. The only difference was that, on his preferred view, those views would be put forward by the Guardian whereas, if representation were permitted to continue, those views would be put forward by her own advocate. When pressed as to why there would be this great difference for her welfare in this fairly subtle difference, Dr Williams said that enabling her to put forward her view directly would reinforce her sense of powerfulness; she would feel that she was in control and that the Court would have to follow her wishes. This would be bad for her. As Advocate Gilbert pointed out, it is hard to see that she would think that, given that on at least two occasions when her views had been represented directly by her advocate to the Court - the making of the interim care order and of the secure accommodation order - the Court had gone against her wishes. Ultimately, given that she has had direct legal representation throughout the proceedings and that such representation would only continue for the short period until conclusion of the final care hearing, we were not convinced that continued legal representation was likely to have the effect which Dr Williams suggested.
(iv) To the extent that any harm would be caused by reinforcing her sense of powerfulness, we consider that this is outweighed by the importance of her feeling that her views have been heard by the Court - even if not accepted - and that there is accordingly insufficient reason for the fairly drastic step of removing her legal representation at such a late stage.
34. In summary, the Court considered that Q had sufficient understanding to be competent to instruct her advocate and that there were insufficiently strong concerns about any adverse welfare consequences for her representation to be removed at this late stage. The Court therefore ordered that her representation continue. This duly occurred and, notwithstanding her opposition through her advocate, the Court eventually made a full care order at the final hearing.
Authorities
Children (Jersey) Law 2002.
Re H (a minor) (care proceedings: child's wishes) [1993] 1 FLR 440.
Family Proceedings Courts (Children Act 1989) Rules 1991.
Mabon v Mabon [2005] 2 FLR 1011.
Re K and H [2007] 1 FLR 2043.
'Good Practice in Child Care Cases' published by the Law Society of England and Wales.
Re M (Minors) (Care proceedings: child wishes) [1994] 1 FLR 749.