Mabon v Mabon & Ors

Mabon v Mabon & Ors

Where children are articulate, mature, and have sufficient understanding, Rule 9.2A(6) FPR 1991 requires the court to allow them to participate as parties without a guardian ad litem. The judge at first instance erred by focusing on welfare and not properly assessing the sufficiency of understanding or the shift towards child autonomy reflected in international obligations. The appeal is allowed and the children are permitted separate representation.

Parties
Applicant: Susan Helen Mabon; 1st Respondent: James Mabon; 2nd 7th Respondents: Craig, Andrew, Adam, Kirsteen, Helen & Callum Shawdale-Mabon (by their guardian ad litem, James Barclay)
Jurisdiction
England and Wales
Judgment Date
26 May 2005
Procedural Posture
Family Law Appeal / Appeal From Salisbury County Court, Post Judgment, on Refusal to Allow Children to Be Represented Separately Under Rule 9.2 A(4) FPR 1991
Outcome
Appeal allowed
Legal Topics
Separate Representation of Children, Sufficiency of Understanding, Guardian Ad Litem, Children's Rights to Participate, Application of Rule 9.2 a and 9.5 FPR 1991, Article 12 UNCRC, Article 8 ECHR
Family Law Children Law Civil Procedure Separate Representation of Children Sufficiency of Understanding Guardian Ad Litem Children's Rights to Participate Application of Rule 9.2 a and 9.5 FPR 1991 +2 more

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Parties

Susan Helen Mabon

Applicant

James Mabon

1st Respondent

Craig, Andrew, Adam, Kirsteen, Helen & Callum Shawdale-Mabon (by their guardian ad litem, James Barclay)

2nd 7th Respondents

Procedural Posture

Family Law Appeal / Appeal From Salisbury County Court, Post Judgment, on Refusal to Allow Children to Be Represented Separately Under Rule 9.2 A(4) FPR 1991

Legal Issues

  1. 1 Whether the three eldest children should be permitted to be separately represented in family proceedings under Rule 9.2A(4) FPR 1991
  2. 2 Whether the children had sufficient understanding to participate as parties without a guardian ad litem
  3. 3 Whether the judge at first instance erred in his application of the law and consideration of welfare

Ratio Decidendi

Where children are articulate, mature, and have sufficient understanding, Rule 9.2A(6) FPR 1991 requires the court to allow them to participate as parties without a guardian ad litem. The judge at first instance erred by focusing on welfare and not properly assessing the sufficiency of understanding or the shift towards child autonomy reflected in international obligations. The appeal is allowed and the children are permitted separate representation.

Court Disposition

Appeal allowed

Orders

  • Order under Rule 9.2A(4) FPR 1991 made in respect of each child permitting separate representation