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Child wins the right to challenge her care order

Posted on 15/11/2016 by

Law Court 2900691b

A 16-year-old girl has won an appeal to instruct her own lawyer and try to discharge the care order made for her

A child in care has won the right to instruct a lawyer to appeal her care order.

A 16-year-old girl, referred to as FW, won the right to challenge a care order made in 2014 after a court found she and her siblings had been emotionally and physically abused.

Since entering care FW had absconded regularly, the appeal hearing was told. She was appealing a judge’s earlier decision to reject both her request to instruct her own solicitor and her application to discharge recovery and care orders made for her.

The judge made the care order after the children were found to have been controlled by their father and subjected to “demeaning and humiliating punishments”. FW denied this and said she did not accept the judge’s findings.

In the appeal hearing lawyers for the children’s guardian, who opposed FW’s request, said the girl’s capacity was “severely compromised”. They argued her “extreme subservience to her parents” and her isolation meant she was unable to hold independent views.

“It appears she is being used or required by her parents to conduct litigation in which they choose not to play an active role and direct participation poses an obvious risk of harm to FW,” the lawyers argued.


Representatives for FW argued that she had instructed a lawyer in the first set of proceedings in 2014. The guardian’s argument “placed inappropriate reliance upon concerns that FW was under the influence of her parents and upon the fact she did not accept that her parents posed any risk to her,” they claimed.

The two appeal judges accepted the argument FW should be allowed to instruct a solicitor, and said the fact she had done so before was of “considerable significance”.

Justice Black added that, while she understood the concerns of the influence the parents might hold over FW, “the fact that the child’s view coincides with the parents’ views are influenced by the views of others in one way or another and it can be very difficult to decide reliably whether or not someone is simply an agent for another person”.

She added: “She may be acting under the influence of her parents in bringing the litigation but also wishing to play an active part in it to put her own view across.”

Black said a child denying the facts found by the court should not lead to the conclusion they lack sufficient understanding to instruct a solicitor.

The recovery order proceedings and application to discharge FW’s care order will be reheard, Black said.

Source: Community Care