A teenage girl taken into foster care should have been allowed to continue instructing her own solicitor, the High Court has declared.
The case concerned ‘FW’, a 16 year old girl who was the subject of a care order made in May. She had originally been involved in care proceedings back in 2014, along with her siblings. The Judge at the hearing concluded that the children had been physically and emotionally abused. This included the use of “demeaning and humiliating punishments”. The court made interim care orders pending a further hearing on the children’s long term future.
FW did not accept the judge’s findings however, and she had continued to insist ever since that she wanted to go home.
A mental health assessment of the children conducted at Great Ormond Street concluded that:
“The children have been brought up in an environment where there has been an expectation that they will remain subservient to their parents and their parents’ wishes at all times. Due to this the older children have been unable to develop their own sense of autonomy and self-belief.”
The family had lived an isolated lifestyle, becoming emotionally dependent on each other and leaving the children very loyal to their parents. The Judge also suspected that the parents, by then separated, would reconcile and said the children’s safety could not be guaranteed if they stayed with their mother and father.
In March last year, FW was sent to live with a foster family, but she ran away several times. Eventually she moved in with grandmother and began seeing her parents without any supervision by social workers. Then the parents moved in with the grandmother and the local council then applied to have FW taken back into foster care via a ‘recovery order’.
FW responded by trying to have the care orders made for her and one of her brothers ‘discharged’ (cancelled). During a complex sequence of hearings, opinions differed as to whether the girl was sufficiently mature to have her own legal representation. She had already instructed her own solicitor by that point.
The Judge decided that she was not: she was too influenced by her parents and had not shown a sufficient understanding of the issues.
Lady Justice Black explained:
“The judge … granted the recovery order, leaving it to the local authority’s discretion as to when the order was executed, as FW was continuing to attend school and was about to sit her GCSEs, and there was a reluctance to disrupt her at this time unless it was necessary in order to keep her safe.”
FW’s application to discharge the care orders was dismissed. She had no separate legal representation and she appealed the decision to deny her this.
Lady Justice Black explained the law regarding the instruction of solicitors by teenagers, as set out in the Family Procedure Rules. The child’s legal guardian normally appoints a solicitor in family disputes. If that solicitor has reason to believe that the child wants to give instructions different to those given by the guardian, then the solicitor must accept those provided the child in question is thought to be sufficiently mature.
In this case, FW had been clear about her wish to separately represented and dispense with the guardian. Lady Justice Black concluded that the decision to deny FW her own legal counsel had been “the wrong decision”.
“Things went awry, in my view, by virtue of the judge giving insufficient weight to matters such as FW’s age, her history of instructing her own solicitor for a considerable period of time in the care proceedings, and the views of [a solicitor instructed by FW for a period] who represented FW then and considered that she had sufficient understanding to instruct her in the fresh proceedings, and setting too much store on the entirely understandable concerns about parental influence and on FW’s denial of facts found in relation to the past and risks which it had been established there would be in the future.”
FW’s appeal was allowed.
Read Re W (A Child) in full here.