Children's representation through the looking glass

14 MAY 2007

Professor Jane Fortin, School of Law, Kings College London. The DCA's recent consultation paper Separate Representation of Children (CP/20/06) expresses the view that the judiciary's ability to order party status for children under r 9.5 of the Family Proceedings Rules 1991 (SI 1991/1247) is used too widely, and as such is increasing the costs of litigation and putting a huge strain on CAFCASS. The DCA's proposal is that the use of r 9.5 should be restricted. The proposed formula for restricting use of the rule lacks clarity, however, and a strict interpretation of what is proposed would restrict it to a bare trickle of cases, at a time when the judiciary is becoming increasingly aware that many children benefit from party status for reasons which may have little to do with legal principle but everything to do with their rights and welfare.

This article considers the historical imbalance between the system provided for children in public and private law proceedings and looks at the development of r 9.5 and the original 2002 proposals for separate representation rules, which have dwindled to the current proposal to restrict judicial discretion to use the rule. Examining all of this in the light of international human rights instruments, the author puts forward the argument that a restriction on the judiciary's freedom to make r 9.5 appointments could be an infringement of the UK's international obligations to children. The article goes on to consider the use of r 9.2A (child instructing his own solicitor, without a guardian) and considers the uncomfortable possibility that the DCA is promoting the use of this rule, combined with restrictions on the use of r 9.5, as a less expensive method of providing more children with separate representation in private law cases. For the full article see June [2007] Fam Law.

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