Children’s applications in private proceedings: when does a child need child ‘permission’ to proceed – Part 2?

A child’s ‘understanding’: where a child does not need a guardian etc…

In How much respect do children deserve from the family courts? of 11 September 2025 I looked at the question of children’s applications under Children Act 1989 (CA 1989) s 10(8) for their own CA 1989 section 8 orders. In particular I was concerned as to the basic question of what level of judge should deal with such proceedings: what is law and what – if it can be discerned in any real way – is procedural practice? Most importantly, what should be the children law experience of the judge. My concern was alerted by disposal of a child’s application in the Family Court by a circuit judge in Cardiff.

The intent of the existing practice direction (Practice Direction, Children Act 1989 – Applications by children [for permission to apply], 22 February 1993 [1993] 1 WLR 313, [1993] 1 FLR 668 is explained by the Court of Appeal in Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278 (also Re T (A Minor) [1994] Fam 49, [1993] 3 WLR 602 (6 May 1993), CA). Its meaning and intent is relatively clear (cited by the judge at [29]). The concern in these posts is that a child should be shown the respect of having their permission applications heard by a Family Division (ie High Court) judge as the 1993 practice direction and the Court of Appeal require. The High Court judge would be a judge used to dealing with specialist family law applications. With all due respect to this circuit judge – who plainly put a lot of work into the Tom judgment – he did not have specialist family law experience and (I fear) limited help from the one barrister advocate in court.

I shall also try to find out why the main child law textbook – Children Law and Practice (Bloomsbury, loose-leaf, one of whose authors is Sir Andrew McFarlane P, himself) – makes no mention of the February 1993 practice direction. Family Court Practice includes the practice direction at [5.3] but makes no reference to it in the text. Children or their advisers who want to apply for section 8 orders will not easily know that these cases should be heard in the High Court (as was the position for the unfortunate ‘Tom’).

Tom’s application to a circuit judge

In Tom v M & anor [2024] EWFC 313 (B) (22 October 2024), it is as clear as it can be that Tom’s application were dealt with by a generalist circuit judge, HHJ Muzaffer (HHJM), in the Family Court sitting in Cardiff. He refused Tom’s ‘applications (sic)’. As far as I can tell the law does not permit a circuit judge in the Family Court to dispose of a child’s application under CA 1989 s 10(8) (as explained later); and that s 10(8) does not anyway apply to a case like Tom’s if a ‘solicitor’ has assessed Tom’s understanding to proceed without a guardian etc (FPR 2010 r 16.6).

If I am right, HHJM’s involvement in this case was unlawful (in the sense that there was no power to allocate the case to him). That may be a harsh thing to say, since he clearly took a lot of trouble to deal with the case. Given that a solicitor – or perhaps a legal executive? – assessed Tom’s understanding, as the judgment implies, I cannot see it was necessary for the court consider the question of CA 1989 s 10(8) permission at all (Family Proceedings Rules 2010 (FPR 2010) r 16.6(3)(b)). If so the whole exercise was unlawful: Tom was entitled (subject to any court challenge to his solicitor’s assessment of understanding) to proceed with a section 8 order (r 16.6(9) and (10)).

In my first post (referred to above) I summarised what I thought were the issues which Tom’s case implied namely:

(1) What application, or applications, were the family courts dealing with in Tom’s case?

(2) What is the substantive law on which Tom’s application was based, especially under CA 1989 s 10; and given the terms of FPR 2010 r 16.6(3) did Tom need permission to apply?

(3) How should Tom’s application have been dealt with procedurally and what level of judge should have been heard his application?

(4) Tom’s case is not a precedent. It is not ‘citable’; but is it of any value (other than to Tom). And if the case was dealt with by the wrong judge, by the wrong procedure or otherwise unlawfully should it stand as between the parties?

(5) Lurking in all this is a CA 1989 s 91(14) (no further application without permission); but did the judge really intend that it should be in relation to Tom as well as to his parents?

Children’s applications in Children Act 1989 Part 2 proceedings

Children’s applications procedurally – ie under FPR 2010 Part 16 – are regulated by a jungle of provisions (as Tom’s case shows). Part 16 Chapter 3 deals with appointment in private law proceedings other than where a child dos not need a guardian etc. That is covered by the one-rule Chapter 4, namely r 16.6. As I read Tom, it was this rule which applied to his application; yet I cannot see that HHJM touched on the rule at all (though in fairness to the judge he considered a variety of aspects of the law which plainly troubled him extensively).

Tom is a boy who was aged 13 years old at the time of these proceedings. The application was made by Tom himself with a legal executive at firm of solicitors. Tom had a children’s guardian pursuant to FPR 2010 r 16.4; though given that a solicitor represented Tom it is not clear why appointment of a children’s guardian (r 16.4) was thought necessary. As the judge said, Tom had effectively proceeded to date being separately represented by Kristy Smith, a legal executive.

The judge summarised the applications before him as:

[2] Tom seeks the court’s permission to apply to vary two orders made by the Family Court in respect of him at earlier points in time. The first is a child arrangements order dated 28 January 2020 that stipulates he should live with each of his parents over a roughly equal split in time. The second is a specific issue order dated 4 July 2022 that determined he should attend X school.

Tom was applying under CA 1989 s 10(8) for permission to apply for a section 8 order. Only Tom was represented (his parents were in person). Of the judge, Tom’s barrister and his legal executive none seem to have drawn to the court’s attention to the fact that FPR 2010 Part 16 permits that an application be made on a free-standing basis (ie a child is entitled to apply) for a CA 1989 Part 2 order

(3) ….[where] either –

(a)the child has obtained the court’s permission; or

(b)a solicitor –

(i)considers that the child is able, having regard to the child’s understanding, to give instructions in relation to the proceedings; and

(ii)has accepted instructions from that child to act for that child in the proceedings and, if the proceedings have begun, the solicitor is already acting.

Tom had a form of solicitors acting for him. In principle r 16.6(3)(b) applies, surely?

Section 8 defines the Part 2 orders (‘section 8 orders’) the family courts can make for children (child arrangements (living with or contact with a child), specific issue or prohibited steps order). Section 9 sets out the limits of the making of Part 2 orders. Section 10 sets out the powers the court has: ‘who is entitled to apply can apply or who has ‘leave’ (ie permission) to apply. That is the second category of applicant must go through a filter process.

Where the person who seeks permission is the child concerned in a case it is crucial to be precisely clear what CA 1989 s 10(8) says:

(8) Where the person applying for [permission] to make an application for a section 8 order is the child concerned, the court may only grant [permission] if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.

Variation of a section 8 order

A quick postscript to all this: as far as I can see Tom was not a party to either of the earlier applications concerning him by his parents. CA 1989 s 10(6) picks up the question of who may apply to vary a CA 1989 Part 2 order as follows:

(6) A person who would not otherwise be entitled (under the previous provisions of this section) to apply for the variation or discharge of a section 8 order shall be entitled to do so if—

(a) the order was made on his application; or

(b) in the case of a child arrangements order, he is named in provisions of the order regulating arrangements relating to—

(i)with whom the child concerned is to spend time or otherwise have contact, or

(ii)when the child is to spend time or otherwise have contact with any person.

The Family Court Practice 2025 makes the point – correctly, I think, at 2.235[2] – that only a person who can apply for a section 8 order (ie not Tom) which has been varied can apply for a variation. As I read all this, none of these provisions apply to Tom. He could not apply to vary his parents earlier s 8 proceedings. He could only apply for a section 8 order for himself (eg where he was going to live and to go to school). He could not vary existing sections 8 orders as this judge seemed to attempt to do.

Understanding the law

It may be thought a cheap point, but it is most unlikely that a child aged 16 (say), still less – as Tom was in 2024 – a child aged 13 could understand the law. The point is less ‘cheap’ when it is as clear as it can be, as I shall show, that the scattering of lawyers (judge, barrister and legal executive) in Tom’s case did not understand the law either. Who are they, it might be said, to cast the first stone, where they do not themselves ‘understand’ the law.

I have been practising and writing on family law for over fifty years; and I represented Claire T (in Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278 (above)) all those years ago as CA 1989 was bedding down. I was well aware then; and r 16.6 was being developed as Claire’s case was in the Court of Appeal. I was well aware of the 1993 PD which is still in force.

Applications by a child in practice seems to be ignored by FCP. I did not find it easy to set out with my above analysis of CA 1989 s 10; and FPR 2010 Part 16 (notably r 16.6) do not make it easier. I accept I may still not have got it all right. How then does anyone who is inexperienced in children law – a parent, without benefit of legal aid (say) or a child – understand what all this is about? This question becomes more urgent when – it seems – even the lawyers in ‘Tom’s’ case seem not to understand the law and procedure. If lawyers cannot understand all this, how can a child?

A procedure

In the next post, looking at (1) what CA 1989 s 10, (2) the 1993 practice direction with what Waited LJ said in Re CT and (3) at FPR 2010 r 16.6 I shall say what I think is the procedural position for someone in Tom’s position. That is assuming he is assessed as of ‘understanding’ by a solicitor how and to what court does he apply. I shall touch on what ‘a solicitor’ may mean in the context of r 16.6 (if space permits) and after the review of the meaning of a solicitor’s ‘reserved activity’ within the meaning of the Legal Services Act 2007 and after Mazur & anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) (16 September 2025), Sheldon J.

David Burrows

9 October 2025