Children’s applications in private proceedings: who gives a child ‘permission’ to proceed – Part 3

Assessment or not of a child’s ‘understanding’ in children proceedings

Looked at from the point of view of a child (C) who may – or may not – be permitted to instruct a lawyer in children proceedings, the subject of C instructing a solicitor depends on the form of the application and how it is pursued by or for C. C’s ability to rely on representation depends on C’s understanding; but understanding of what and by whose assessment?

The complexity of C’s position may be further affected by the recent decision of Mazur & anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) (16 September 2025), Sheldon J and the question of whom, within a firm of solicitors, may act as a solicitor to define C’s ability to instruct (Family Proceedings Rules 2010 (FPR 2010) r 16.6(3)(b)).

Any reader of what follows can perhaps reflect what C – a child of understanding – may make of the less than ‘straightforward’ set of rules which the child must confront to express C’s own views in children proceedings which affect that child in those proceedings.

Three categories of children applications for their involvement in court proceedings

The statutory and procedural framework for children’s involvement in CA 1989 proceedings falls into the following three categories:

(1) A child may take proceedings alone if the court permits it (Children Act 1989 (CA 1989) s 10(8); FPR 2010 r 16.6(3)(a)); though proceedings by a child without representation (ie without a children’s guardian) is likely to be rare.

(2) A solicitor may agree to act for C where the solicitor considers a child able is of sufficient understanding to give instructions in relation to the case (FPR 2010 r 16.6(3)(b)).

(3) Where in proceedings under CA 1989 Part 4 statute dictates that a chid be represented in proceedings by virtue of the nature of the public law proceedings (CA 1989 s 41).

In Re Z (Interim Care Order) [2020] EWCA Civ 1755, [2021] 2 FLR (18 December 2020) Baker LJ summarised his view of the scheme for representation of children. With bland understatement (at [45]) Baker LJ described the scheme ‘which are far from straightforward’, an assessment seconded by Peter Jackson LJ Re C (A Child) (Child: Ability to Instruct Solicitor) (Practice Note) [2023] EWCA Civ 889, [2023] 1 WLR 4065 (26 July 2023) at [45].

The trio of Court of Appeal judges – all highly experienced children lawyers – is completed by Black LJ in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027, [2017] 2 FLR 199 (1 November 2016) (whose main findings Peter Jackson LJ summarises at [54]-[56]). Black LJ summarised alluded to the ‘complexity’ of the scheme summarised in Re Z at [45]:

[18] There was some divergence of view as to which precise part of Rule 16 FPR 2010 should be the focus of the court’s attention. This was explored during the hearing but I do not propose to go into the details because there was, in fact, agreement as to the ‘test’ that determined whether or not FW was entitled to be separately represented. I should make clear that when I speak of FW being separately represented, this is a loose term not entirely reflecting the complexity of the scheme under CA 1989 s 41 and FPR 2010 Part 16. What I seek to convey by it is a situation in which FW separates from the children’s guardian appointed to represent her interests, and gives her own instructions to a solicitor (italics added).

All three judges, it must be emphasised, are dealing with the involvement of children only in one aspect of the scheme summarised above: namely, proceedings under CA 1989 Part 5 (ie category (3) above)).

A child’s ‘understanding’ and the law

Category (3) proceedings and the first two categories of children applications all fall to be assessed – or reviewed by the court in cases of doubt as to understanding – in the light of C’s understanding. But what does the law think is the meaning of ‘understanding’ in this context?

In one of the earliest cases under the then new CA 1989, Waite LJ explained ‘understanding’ in the context of the new law. In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, also as Re T (A Minor) (Child: Representation) [1994] Fam 49, [1993] 3 WLR 602 (6 May 1993), CA (where I represented the applicant child Claire T, a 14-year-old adopted child who wanted to go back to live with her natural family) Waite LJ said what he understood the meaning of ‘understanding’ to be in the context of the new legislation:

3. The child’s “understanding”

This is a factor expressly to be considered by the court when considering whether to grant leave to apply under section 10(8) of the Act, and also when considering whether to grant leave to initiate or continue proceedings without a next friend or guardian ad litem under cases (1) and (2) above. It is also a factor expressly to be considered by the solicitor in considering whether to accept instructions in case (3).

He then points out that ‘no definition of “understanding” is attempted by the Act or the Rules’ – either then, or now; but he says, ‘guidance was offered by the Court of Appeal in Re S (A Minor) (Independent Representation) [1993] 2 FLR 437, CA where Sir Thomas Bingham MR (who with Staughton LJ also sat with Waite LJ in Re CT) said in Re S:

Different children have differing levels of understanding at the same age. And understanding is not an absolute. It has to be assessed relatively to the issues in the proceedings. Where any sound judgment on these issues calls for insight and imagination which only maturity and experience can bring, both the court and the solicitor will be slow to conclude that the child’s understanding is sufficient.

Peter Jackson LJ refers to these two cases in Re C paras [50] – [51] and concludes his summary of recent case law on a child’s ‘understanding’ by looking at the comments of Black LJ in Re W especially her [36] (see his para [56]). Black LJ’s comments include:

[36] Sometimes there will be a clear answer to the question whether the child is able, having regard to his or her understanding, to give their own instructions to a solicitor. In cases of more difficulty, the court will have to take a down to earth approach to determining the issue, avoiding too sophisticated an examination of the position and recognising that it is unlikely to be desirable (or even possible) to attempt to assemble definitive evidence about the matter at this stage of the proceedings. All will depend upon the individual circumstances of the case and it is impossible to provide a route map to the solution….The judge will expect to be guided by the guardian and by those solicitors who have formed a view as to whether they could accept instructions from the child. Then it will be for the judge to form his or her own view on the material available at that stage in the proceedings…

In a final analysis, what is ‘understanding’? Black LJ suggested:

[36] … Understanding can be affected by all sorts of things, including the age of the child, his or her intelligence, his or her emotional and/or psychological and/or psychiatric and/or physical state, language ability, influence etc. The child will obviously need to comprehend enough of what the case is about (without being expected to display too sophisticated an understanding) and must have the capacity to give his or her own coherent instructions, without being more than usually inconsistent….

Rules and law which are ‘not straightforward’

The tangle of rules – Baker LJ’s modest description as ‘not straightforward’ – for various aspects of child representation, which is FPR 2010 Part 16, r 16.6 and its underlying law sets out a series of rules where a child does not need a children’s guardian, which means that – in theory at least – a child can act alone. This means either of two set of circumstance set out in FPR 2010 r 16.6(3) (category (2) above):

(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.

Where a child wishes to apply alone for an order under CA 1989 Part 2 (eg to define where C is to live or to go to school: ‘the application’) then the court must assess C’s understanding (category (1) above):

… the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the [order under CA 1989 Part 2).

If a solicitor accepts instructions and is willing to act (as I did for Claire T just over 30 years ago, and under a newly minted rule, Family Procedure Rules 1991 r 9.2A(1)) the case proceeds with the solicitor instructed now under r 16.6(3)(b). This will be how C’s application proceeds unless (1) C’s solicitor takes the preliminary step of asking the court to approve their appointment or their role in the case or (2) one of the parties on the court objects. Then the courts understanding of the child’s understanding falls to be considered.

Going back to the categories listed earlier:

(1) Application under (1) proceeds under CA 1989 s 10(8) and r 16.6(3)(a);

(2) Application under (2) is under 16.6(3)(b) subject to any question as to the courts assessment of understanding; and

(3) Category (3) applications may arise in the case of a child’s assertion that a child in care proceedings wants separate representation.

A ‘solicitor’ acting under Family Proceedings Rules 2010 r 16.6(3)(b)

I now pick up the r 16.6(3)(b) point as to a child being represented in category (3) proceedings. In Re C Peter Jackson LJ at [50] says that a solicitor representing a child will be a member of the Law Society’s Children’s Panel. In an earlier post I mentioned that a child was represented by a Legal Executive (Tom v M & anor [2024] EWFC 313 (B) (22 October 2024), HHJ Muzaffer, Family Court Children’s applications in private proceedings: when does a child need child ‘permission’ to proceed – Part 2)

The Law Society children law accreditation is intended to be ‘a recognised quality standard for practitioners representing children in children law proceedings’ and says that to apply for the Children Law Accreditation, ‘you must be either a:

• solicitor

• chartered legal executive who:

  • is employed by an SRA-regulated practice that has at least one solicitor who specialises in children law

  • holds an advocacy qualification awarded by the Chartered Institute of Legal Executives (CILEX)’

In the recent Mazur & anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) (16 September 2025) Sheldon J, sitting in the King’s Bench Division, casts a careful eye over the operation of Legal Services Act 2007 (LSA 2007) and reserved legal activities under Part 3 of the 2007 Act. What is the extent can a solicitor’s employee be permitted – if at all – to conduct litigation unsupervised for a client can carry on a reserved activity infer Legal Services Act 2007 and defining limitations on the extent of such role.

An what is a solicitor?...

I suspect that Mazur may call for review of the Law Society scheme so that ‘solicitor’ means what Sheldon J says it means in Mazur.

In Mazur Sheldon J examines the meaning of ‘reserved legal activity’ in the context of LSA 2007 and how it works in a relatively modest debt action. What was the position of a defendant in proceedings where the claimant was acted for by an unqualified member of the claimant’s firm. Sheldon J came to the remarkable conclusion that there may be a breach of the terms of LSA 2007 Part 3 which seeks to explain what category of lawyer may represent a person in litigation.

As for C and C’s solicitor: whether he or she is a solicitor or not – it can only be hoped for C’s sake that what ever the law may be the solicitor can understand it from the tangle described above.

David Burrows

16 October 2025