W (A Child)

W (A Child)

FW had sufficient understanding to instruct her own solicitor, given her age, prior experience of separate representation, and the professional opinion of her solicitor. The judge erred by conflating welfare concerns with understanding and by failing to give proper weight to FW’s history and solicitor’s view. The refusal to permit separate representation was wrong and the substantive orders must be set aside.

Parties
Appellant: FW; Respondent: Local Authority; Interested Party: Children’s Guardian; Interested Party: Father; Interested Party: Mother
Jurisdiction
England and Wales
Judgment Date
01 November 2016
Procedural Posture
Appeal / Judgment
Outcome
appeal allowed
Legal Topics
Child Representation, Care Orders, Recovery Orders, Litigation Capacity, Separate Representation
Family Law Child Law Child Representation Care Orders Recovery Orders Litigation Capacity Separate Representation

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Parties

FW

Appellant

Local Authority

Respondent

Children’s Guardian

Interested Party

Father

Interested Party

Mother

Interested Party

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether FW should have been permitted to instruct her own solicitor and part company with the children’s guardian in public law proceedings
  2. 2 Whether FW had sufficient understanding to give instructions independently
  3. 3 Whether the judge erred in conflating welfare considerations with understanding

Ratio Decidendi

FW had sufficient understanding to instruct her own solicitor, given her age, prior experience of separate representation, and the professional opinion of her solicitor. The judge erred by conflating welfare concerns with understanding and by failing to give proper weight to FW’s history and solicitor’s view. The refusal to permit separate representation was wrong and the substantive orders must be set aside.

Court Disposition

appeal allowed

Orders

  • FW permitted to instruct her own solicitor
  • Appointment of Ms Gaff as FW’s solicitor terminated