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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Re M (Minors) (Care Proceedings: Child's Wishes) [1993] EWHC 1 (Fam) (02 December 1993) URL: http://www.bailii.org/ew/cases/EWHC/Fam/1993/1.html Cite as: [1994] 1 FLR 749, [1994] 1 FCR 866, [1993] EWHC 1 (Fam), [1994] Fam Law 430 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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| RE M (MINORS) (CARE PROCEEDINGS: CHILD'S WISHES) |
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Helen Hendry for the mother
John Brodwell for the father
Patricia Gore for the guardian ad litem
Stuart Gordon for the child
The names of instructing solicitors are omitted in the interest of preserving anonymity for the parties.
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Crown Copyright ©
WALL J:
I have been dealing with two children, R aged 12 and his sister E aged 4. In a judgment given earlier today in chambers I made care orders in relation to both children. Save insofar as they emerge in the part of the judgment which I am about to deliver, the facts upon which I made the care orders do not, in my judgment, call for report.However, two points of more general importance arise from the facts of the case. The first relates to the correct procedure to be adopted in public law proceedings when, as here, the guardian ad litem has been appointed to represent more than one child, and finds: (1) that what she proposes to recommend to the court as being in the best interests of the children conflicts with one of the children's wishes; and (2) the child in question is able, having regard to his understanding, to give instructions to his solicitors which conflict with the guardian ad litem's views.
Cases in which a local authority seeks a care order are 'specified proceedings' under s 41(6) of the Children Act 1989. Accordingly, pursuant to s 41(1) the court must appoint a guardian ad litem for the child or children concerned unless satisfied that it is not necessary to do so in order to safeguard the child or children's interests.
The Act and the Family Proceedings Rules 1991 provide in a number of ways for the appointment of a solicitor to represent the child depending on the proceedings involved. In care proceedings the first, and most usual, is where there is no conflict between the wishes of the child and the guardian ad litem, and the latter appoints a solicitor to represent the child under the Family Proceedings Rules 1991, r 4.11(2). This reads as follows:
'The guardian ad litem shall –
(a) appoint a solicitor to represent the child unless such a solicitor has already been appointed, and
Under s 41(3)-(5) of the Act, the court may appoint a solicitor to represent the child where the child concerned is not already represented by a solicitor, and any of the following further conditions are satisfied, namely:(b) give such advice to the child as is appropriate having regard to his understanding and, subject to rule 4.12(1)(a), instruct the solicitor representing the child on all matters relevant to the interests of the child, including possibilities for appeal, arising in the course of the proceedings.'
(1) no guardian ad litem has been appointed for him;
(2) the child has sufficient understanding to instruct a solicitor and wishes to do so; and
(3) it appears to the court that it would be in the child's best interests for him to be represented by a solicitor.Any solicitor so appointed must represent the child in accordance with rules of court.
The guardian's further duties in relation to the appointment of a solicitor for the child and for his own representation are set out in the Family Proceedings Rules 1991, r 4.11(3). This reads as follows:
'Where it appears to the guardian ad litem that the child –
(a) is instructing his solicitor direct, or
(b) intends to, and is capable of, conducting the proceedings on his own behalf, he shall so inform the court and thereafter –
(i) shall perform all of his duties set out in this rule, other than duties under paragraph (2)(a) [that is the duty to appoint a solicitor for the child] and any such other duties as the court may direct,
(ii) shall take such part in the proceedings as the court may direct, and
In my judgment, for reasons which I will develop in a moment, the phrase 'inform the court' in r 4.11(3) should be interpreted to mean 'inform the court on a directions appointment'. Thus if the circumstances envisaged by the rule occur, the guardian ad litem should, in my view, either report the matter to the court at the next directions appointment or, if there is no such appointment fixed, immediately take out an appointment for directions so that the question of representation can be considered and decided by the court.(iii) may, with leave of the court, have legal representation in his conduct of those duties.'
The duties of the solicitor for the child are set out in the Family Proceedings Rules 1991, r 4.12. This rule makes it clear that, whether appointed under s 41(3) or by virtue of the Family Proceedings Rules 1991, r 4.11(2)(a), the solicitor must 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 under rule 4.11(3) that the child wishes to give instructions which conflict with those of the guardian ad litem and that he is able, having regard to his understanding, to give such instructions on his own behalf in which case he [the solicitor] shall conduct the proceedings in accordance with instructions received from the child . . .'The only authority which touches on this subject is Re H (A Minor) (Care Proceedings: Child's Wishes) [1993] 1 FLR 440, a decision of Thorpe J. In my judgment, that case demonstrates the importance of the court making an informed decision about the child's representation at an early stage. What happened was that a local authority took care proceedings relating to a child of 15 seeking a psychiatric assessment of the child under the aegis of an interim care order. At the initial hearing the child was represented by a local solicitor. A guardian ad litem had been appointed only 7 days prior to the hearing, but at the initial hearing there was no conflict between the child and the guardian ad litem who was working co-operatively with the child's solicitor in the presentation of his case to the bench. The application for an interim order was thus opposed by the child and the guardian ad litem working in conjunction. However, the justices who heard the case decided on the basis of psychiatric evidence called by the local authority that the child was not of sufficient understanding to make an informed decision in relation to the refusal of treatment and made an interim care order.
At the final hearing, some 3 months later, which was attended by the child throughout, it became apparent that the child and the guardian ad litem were giving divergent instructions to the solicitor. It was clear that the child was capable of giving coherent instructions to the solicitor, but the solicitor on a number of occasions assured the bench that he was not in difficulty with his conflicting instructions.
At the conclusion of the hearing, the bench made a care order. The child wanted to appeal, but the solicitor who had been acting for him during the proceedings on the conflicting instructions of the child and the guardian ad litem stated that he could not act because he did not consider an appeal appropriate. There were accordingly substantial procedural difficulties before an effective appeal could be mounted.
The principal complaint by the child on the appeal was that the solicitor wrongly advocated the case on the instructions of the guardian ad litem and not on the instructions of the child or, alternatively, wrongfully endeavoured to advance simultaneously or consecutively the fundamentally conflicting instructions of each. As a subsidiary argument counsel submitted that the guardian ad litem failed to alert the court to the gulf that developed between her views and the views of the child.
Having considered the Family Proceedings Courts (Children Act 1989) Rules 1991, rr 12(1)(a) and 11(3),[1] Thorpe J accepted as 'technically right' submissions on behalf of the child that had the solicitor given proper weight to the terms of r 4.12(1)(a) he would have taken his instructions exclusively from the child and perceived that, whatever the child's emotional disturbance, he clearly had the ability and the determination to convey his wishes and feelings in his instructions. Had the solicitor so construed r 12(1)(a) then the guardian would have reported that development under r 11(3) and might, with the leave of the court, have had separate representation.
Thorpe J thus found that the solicitor had fallen into error in very difficult circumstances and had heroically attempted the impossible by representing divergent points of view. The conclusion which Thorpe J drew on the point is as follows (p 450D):
'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.'I respectfully agree with these observations. It seems to me, however, that in the majority of cases the prospect of a divergence between the views of the guardian ad litem and a child who is capable of giving what Thorpe J describes as 'coherent and consistent instructions' to his solicitor will emerge at a relatively early stage of the proceedings in the course of the guardian ad litem's inquiries. Certainly by the time the guardian ad litem comes to write his or her report (and usually well before) he or she is likely to be aware of a conflict between the guardian's likely recommendations and the child's views.
In my judgment, therefore, guardians must:
(1) be alert from the outset to the possibility either that the situation envisaged by r 4.11(3) applies or that there is likely to be a conflict between the guardian's recommendations and the views of the child;
(2) when either situation arises in a case where the child is or may be capable of conducting the proceedings on his own behalf:
(a) take an early opportunity to discuss the likely difficulties with the solicitor instructed on behalf of the child; and
(b) either take out a summons for directions for the point to be resolved or (where there is a further summons for directions already fixed) bring the matter to the attention of the court and the other parties at that directions appointment;
(3) in the majority of cases, these steps should be taken well in advance of the final hearing. There will always be cases in which a conflict between the guardian and the child emerges only at trial, but with sensible planning, it should be possible to reduce the prospects of this happening to a minimum.In my judgment, the involvement of the court and the other parties is important for the following reasons:
(1) There may be an issue about the capacity of the child under the Family Proceedings Rules 1991, r 4.11(3) to give coherent and consistent instructions or to conduct the proceedings on his own behalf. If there is, that issue should be resolved by the court: if expert evidence on the point is required, the court can give directions which ensure that it is timeously and appropriately obtained.
(2) The court is seized of the conduct of the proceedings and has a duty to give what have been described as 'tight' directions to ensure that the proceedings are disposed of promptly and in the most effective manner. The court thus needs to know at an early stage what issues are likely to arise in the case. Only then can proper directions for representation and the filing of evidence be given.
(3) A summons for directions is not a formality. It is a vital part of the judicial process. Not only is it an essential cog in the machine which prepares a case for trial, but it is also a forum for the parties to exchange information, and agree on progress. Thus a summons for directions at which the representation of the child and the guardian ad litem is discussed and if need be resolved by the court should focus the mind of all the parties on the issues in the case. In my judgment the other parties in cases such as those under discussion here, particularly the child's parents, have a right to know at an early stage how their child is to be represented in the proceedings and what views their child is expressing.
(4) In the High Court, where the judge frequently is invited to read the papers in advance of trial, it is important for the court to know in advance whether or not the child and the guardian ad litem are to be separately represented. In the instant case, I did not know until I came into court that there was to be a separate representation. Had I known it, I would have read the papers with a more critical alertness to the real issues.In the instant case, it became apparent at an early stage that R, who is 12, was steadfast in his expressed wish to go home, and also wished to remain with his sister E, aged 4. Given the complexities of the case, there were a number of permutations available for the ultimate decision-making process, either in the event that I made a care order or that I refused to make a care order. The guardian took the view not only that care orders were necessary but that R and E might well have to be separated. In these circumstances, it was, in my judgment, entirely right that R should be separately represented by his own solicitor.
The court was informed at an early stage that R was separately represented, but no directions were sought under the Family Proceedings Rules 1991, r 4.11(3) and in particular leave was not sought for the guardian to be separately represented. In the instant case, no harm has been done by the omission. R has been very well represented in the proceedings (as has the guardian), and every point has been taken on R's behalf by the solicitor representing him.
Equally, I acknowledge that the decision about representation for the child under the Family Proceedings Rules 1991, r 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.
In the instant case R did not give evidence, nor was he in court during the proceedings. In my judgment, this was absolutely correct. His solicitor invited me to see him, which I did. I took the view that an intelligent and articulate 12-year-old who had an excellent grasp of the issues and who had discussed the matter fully with his solicitor was entitled to see the judge who was to decide his future.
When I saw R, I made it quite clear to him that the decision was mine and that I would not be able to follow his wishes if I did not think it was in his interests to do so. I have no doubt that at one level R will be bitterly disappointed by my decision, which not only puts him permanently in care, but by accepting the local authority care plan, separates him from his sister. I hope very much, however, that R's disappointment at the outcome will be tempered by the fact that very anxious consideration over many days has gone into the decision, that everybody in court was genuinely concerned to act in his best interests and that the local authority into whose care he is committed is, I am quite satisfied, staffed in the instant case by conscientious and capable officers who will ease his transition into full-time care with sympathy and understanding. If he is able to understand that, it will in large measure be due to the fact that he has been ably represented by his solicitor in these proceedings, and that the proceedings have been efficiently conducted by all the advocates in a sensitive and non-adversarial manner. I also hope that as he grows older and is able to view the circumstances with a more adult perception, R may come to realise that the decision was the correct one.
The second point of general importance which arises from the case relates to the instruction of expert witnesses in child cases.
In the instant case, the paediatric evidence was crucial. I heard from three distinguished paediatricians, Drs H, W and B instructed variously by the local authority, the father and the mother. I also heard psychiatric evidence from Dr P called on behalf of the mother.
As I have related at some length in the judgment which I have given in chambers on the substantive issues, Dr H saw R on some seven occasions and E on some ten occasions. He did not examine each child on each occasion. For the purposes of this judgment, the critical examinations of E carried out by Dr H were those of 19 April 1993 and 5 August 1993. The former examination took place some 18 days after E had been received into care. On that occasion, the vulva showed a gaping hymenal opening and the edge was slightly avertive. The doctor was concerned that continuing abuse could have been the cause of the gaping hymenal opening. However, when he examined E on 5 August 1993 his examination of her genitalia revealed:
'. . . reddening around the hymen, which had a rolled edge, gaped and the appearances indicated a tear in the 1 to 2 o'clock position. Diameters were 5 mm transverse x 7 mm AP. There was a bump at 3 and also a lesser bump at 8 o'clock. The anus was reddened and closed. Photographs were taken.'Dr H's comment in his clinical notes was as follows:
'The genitalia are abnormal but there does not appear to be any significant differences from the examination in April 1993 . . .'
and in his report to the court dated 5 October 1993 he stated:
'There was some reddening around the hymen, which had a rolled edge and gaped. The appearances indicated a tear in the 1 to 2 o'clock position. Diameters were much as before . . . I could not say from this examination whether there had been further abuse . . .'When he came to give his oral evidence before me, Dr H had reconsidered the matter. He told me that the tear in the 1 to 2 o'clock position seen in August 1993 had not been present when he examined the child in April 1993 and accordingly that she must have suffered trauma (a genital assault) between 19 April 1993 and 5 August 1993 – that is to say, whilst she had been in the care of the local authority. Dr H was unable to say why he had written in his notes and reported to the court that there were no significant differences between appearances in April 1993 and August 1993.
Dr B, whose initial report (dated 9 July 1993) was written on the material provided by Dr H up to 8 February 1993, was in that report extremely cautious about the suggestion that E had suffered sexual abuse. However, having seen the later material provided by Dr H, and in particular his notes of the August 1993 examination, he wrote a second report stating that there was now evidence of recurrent sexual abuse and that the occurrence of genital trauma while in a children's home 'required explanation and may support the concept of sibling abuse'.
Dr W, who had seen all Dr H's material, was in my judgment quite naturally misled by Dr H's assertion in his notes that there was no significant difference in E's hymenal appearance between April 1993 and August 1993. She therefore concluded that there were a number of 'soft' medical findings which could be interpreted as supportive of a diagnosis of sexual abuse, but that 'infection, poor hygiene and trauma' were all possible explanations for the abnormal findings.
During Dr H's cross-examination it transpired that there were photographs not only of the August 1993 examination but of the April 1993 examination as well. These were sent for and when viewed by Dr B and Dr W confirmed Dr H's revised opinion of trauma between April 1993 and August 1993. All three paediatricians were thus unanimous that E had suffered a sexual assault in the children's home between April 1993 and August 1993.
As this part of the judgment is being made public, it is only right for me to say that whilst I do not propose to name the home or the local authority concerned, there is absolutely no question in my judgment of that assault having been committed by any member of the staff of the home or any local authority employee. I have found as a fact in the judgment which I have given in chambers that the assault or assaults in question were committed by a member of E's family. Nor can it in any way be suggested that the local authority or any member of staff of the home was in any way negligent or that the abuse could or should have been prevented by action which the local authority or the staff failed to take.
The purpose of my recounting these facts in public is not to embarrass Dr H, who is plainly a careful and conscientious paediatrician, but to see if any lessons can be learned for the future. Altogether, the best part of 3 days of court time was taken up by paediatric evidence and in my judgment that time could have been saved if the significance of Dr H's examination of E on 5 August 1993 had been picked up at an earlier stage.
Before I draw the threads together, I also recite the fact that a consultant psychiatrist, Dr P, was called on behalf of the mother. One of the principal purposes of his evidence was to explain the mother's attitudes to authority in the light of her particular history and background. Dr P's report was undated but prepared in early August 1993. He did not specify which documents he had seen, and it became apparent in the course of his evidence both that he had been inadequately instructed and, as importantly, that he had not been kept up to date with developments in the case after the date of his report. As a result, his report was, through no fault of his, flawed in a number of respects and the evidence which he was able to give me was less helpful than it could and should have been. None of this is a criticism of Dr P, who struck me as a highly sensitive and competent psychiatrist.
In my judgment the lessons which can be learned from these events are as follows:
(1) It is essential that medical experts asked to give reports or opinions in child cases are fully instructed. The letter of instruction should always set out the context in which the expert's opinion is sought and define carefully the specific questions the expert is being asked to address.
(2) Careful thought should be given to the selection of the papers to be sent to the expert with the letter of instruction. The letter of instruction should always list the documents which are sent. No doctor wishes to have to spend valuable time reading through papers which are irrelevant to the opinion which he or she is being asked to give. On the other hand, a doctor who ventures an opinion on inadequate material is taking a substantial risk that his or her opinion may be unsound.
(3) In my judgment, and following the decision of the Court of Appeal in Oxfordshire County Council v M [1994] 1 FLR 175, where an expert's report is put in evidence the letter of instruction to the expert should always be disclosed to the other parties and included in the bundle of documents to be used in court.
(4) Doctors and other experts should not hesitate to request further information and ask for additional documentation.
(5) Doctors who have had clinical experience of the child or children outside the immediate ambit of the litigation (for example a paediatrician who has examined or treated a child prior to proceedings being taken) should carefully review their notes before writing a court report and ensure that all their clinical material is available for inspection by the court and by other experts called upon to advise in the case. This includes (although this is not an exhaustive list) all medical notes, hospital records, photographs, correspondence, and X-rays.
(6) Experts who are going to be called to give evidence at the trial must be kept up to date with developments in the case relevant to their opinions. There is nothing more embarrassing for an expert (as well as time-wasting in court) than to be confronted with a document or piece of evidence with which he or she has not previously been supplied, which he or she needs time to consider and which may vitiate the opinion previously expressed in writing.
(7) Experts should always be invited to confer with each other pre-trial in an attempt to reach agreement or limit the issues.
(8) Careful co-operative planning between the legal advisers to the different parties at an early stage in the preparation for trial should be undertaken to ensure the experts' availability and that they can be called to give evidence in a logical sequence. It must be repeated that child proceedings are non-adversarial. In difficult child abuse cases, it is often sensible to have what may be described, for example, as a 'paediatricians' day' whereby the expert witnesses on a particular facet of the case can give evidence one after the other, listen to each other's evidence and comment on it. This should occur irrespective of the fact that given witnesses may be called on behalf of the different parties and may thus be taken out of conventional order.
(9) Where an expert's opinion is uncontentious and he or she is not required for cross-examination, that fact should be established as early as possible in the course of preparation for trial, and the expert notified accordingly. The court appreciates that experts are busy people and that travelling to court and giving evidence in court are time-consuming. The court will always try to accommodate an expert by interposing him or her at a given time: clearly, the greater the degree of planning, the less the time wasted.
The value of expert evidence in child cases cannot be overestimated. In the instant case, the paediatric evidence of sexual assault on E between April 1993 and October 1993 transformed the case. The pity was that the evidence only emerged more than halfway through the case. In an ideal world it would have been established between the experts well before the trial began.Nobody should underestimate the effect of these matters on the litigants. In this case the mother and the father had suddenly to face the medically established fact halfway through the trial that E had been genitally assaulted whilst in care by a member of the family. The attitude of the father remained one of stark disbelief. He called the evidence 'medical engineering'. It may be that he would have thought the same had the finding been possible at an earlier stage. The fact remains that he had little time to adjust to it.
It is preferable that parents and other litigants approach cases with as many of the factual issues as possible resolved, where such resolution is possible pre-trial. Efficient preparation and presentation of medical evidence is in my judgment an important part of that process.
I now propose to adjourn into chambers to discuss the detail of the orders I propose to make.
DEBORAH DINAN-HAYWARD
Barrister
Note 1 Editors’ note: rules 11(3) and 12(1)(a) of the Family Proceedings Courts (Children Act 1989) Rules 1991 are in similar terms to rr 4.11 and 4.12 of the Family Proceedings Rules 1991. [Back]
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