The Court of Appeal has allowed a 16-year-old involved in care proceedings to instruct her own solicitor in a case highlighting the extent to which pro bono solicitors are now needed to resolve representation challenges.
Lady Justice Black said she feared representation problems such as the one encountered in W (a child) were not uncommon.
The teenager, named as ‘FW’ in the judgment, and her siblings had been the subject of care proceedings brought by a local authority in 2014.
The judgment states that she was separately represented for much of the proceedings because the solicitor appointed by the children’s guardian considered that FW wanted to give instructions that conflicted with the guardian’s and was able to, having regard to her understanding.
A care order was made for FW in March 2015, which she subsequently attempted to discharge. The local authority’s application for a recovery order resulted in the appointment of a children’s guardian, Ms Reed, for FW.
Reed instructed a solicitor identified as Ms Gaff. However, it became apparent that FW wanted to instruct another solicitor, Ms Donn, who represented her in the earlier care proceedings.
The judgment states that there was no one to argue FW’s case for separate representation at a hearing on 1 April.
Black said: ‘Because the legal aid certificate for the child had been granted in favour of Ms Gaff, legal aid could not be granted to enable Ms Donn to instruct counsel on public funds and she was unable to find anyone else to take over the matter on a pro bono basis.
‘Ms Donn had sent the court a draft application, made under the [Family Procedure Rules 2010], for the termination of Ms Gaff’s appointment and the substitution of Ms Donn as FW’s solicitor, but, without public funding, she was unable to issue the application formally.’
Black said she feared that representation problems encountered in this case may not be uncommon, given the public funding situation.
She said: ‘We are fortunate that legal representatives are prepared to give their services pro bono to fill the gap in cases such as this. If pro bono representation is to be an effective stop-gap, however, efforts will have to be made to enable the pro bono representatives to participate in the hearing at which the issue of separate representation is determined.’
Agreeing with Black’s decision to terminate Gaff’s appointment allow FW to instruct Donn, Lord Justice Tomlinson highlighted what not being able to instruct her own solicitor meant for FW.
Tomlinson said FW ‘lost the opportunity to have a continuing dialogue, with a professional in whom she had confidence’ about the risks the social workers and guardian considered she faced in her parents’ care, and to discuss how those risks should be balanced with the risks she perceived there to be in forcing her to return to foster care.
He added: ‘For a girl of nearly 16 years of age, who had had past experience of her own legal representation, this would potentially have been of great benefit.’