There has been a recent important case to help solicitors decide whether a child is competent to instruct his or her own solicitor.  This has an impact in particular for funding as a child is automatically legally eligible for legal aid (if assessed as being competent) and will usually be financially eligible because of low/no means.

Previously there has been no general guidance available, though the NHS issued specific guidance for doctors in relation to the contraception of children under 16 years old.  This guidance was litigated in the case of Gillian -v- West Norfolk and Wisbech AHA in 1985, as result of Victoria Gillian, an activist, running an active campaign against the policy of doctors in their discretion being able to prescribe contraception to under sixteens without parental consent.

When is a Child Competent to Give Direct Instructions to His or Her Solicitor?

The factors the court took into account in this recent case of Re CS to decide whether the child involved in the case was competent to instruct her own solicitor where as follows…

  1. Level of intelligence of the child
  2. Emotional maturity of the child
  3. Factors which might undermine a child’s understanding arising from the child’s emotional psychological or emotional state
  4. The child’s reasons for wishing to instruct a solicitor direct and the strength of feeling accompanying the wish to play a direct role
  5. The child’s understanding of the issues in the case and their desired outcome – are the child’s wishes/views their own or are they parroting a parent’s position?
  6. The child’s understanding of the process of litigation to include the function of their solicitor, the Judge, the role they may play and the law that is applied together with the consequences of involvement in litigation.
  7. Court’s assessment of the risk of harm to the child from direct participation -v- the risk of harm arising from excluding the child from direct participation

The consequences of a child being involved in litigation (see F) above) include…

  • The right of the child as a party to see all the papers in the case
  • That the child as a party may be called to give evidence and be cross examined
  • The child may have to give instructions on complex issues to include (non) disclosure of papers
  • The child has to appreciate and adhere to rules about confidentiality

Deciding whether a child is competent to instruct his or her own solicitor is the decision of the proposed solicitor to be instructed.  It is a matter of judgment – the Judge is Re CS, Mr. Justice Williams,  said that the evaluation is more an art than a science; is subject to on going review;  and does not depend on a child having reached a certain age.   However the older the child, and the more mature, the more likely it is that the child can give his or her own instructions.

This is a complex area of the law where expert legal advice/input is required.  Please therefore feel free to contact us at Harney & Wells and we can offer initial advice and funding options (as we hold a current legal aid contract). You can contact us by phone on 01273 684666, by email at enquiries@harneywells.co.uk or by using our Contact Form.

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