Sir Thomas Bingham MR said: ‘Different children have differing levels of understanding at the same age. And understanding is not 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.’ and ‘The 1989 Act enables and requires a judicious balance to be struck between two considerations. First is the principle, to be honoured and respected, that children are human beings in their own right with individual minds and wills, views and emotions, which should command serious attention. A child’s wishes are not to be discounted or dismissed simply because he is a child. He should be free to express them and decision-makers should listen. Second is the fact that a child is, after all, a child. The reason why the law is particularly solicitous in protecting the interests of children is because they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will react and the imagination to know how others will react in certain situations, lacking the experience to measure the probable against the possible. Everything of course depends on the individual child in his actual situation. For purposes of the Act, a babe in arms and a sturdy teenager on the verge of adulthood are both children, but their positions are quite different: for one the second consideration will be dominant, for the other the first principle will come into its own. The process or growing up is, as Lord Scarman pointed out in Gillick …[1986] AC 112 at p 186B [1986] 1 FLR 224 at p250H), a continuous one. The judge has to do his best, on the evidence before him, to assess the understanding of the individual child in the context of the proceedings in which he seeks to participa
Judges:
Sir Thomas Bingham MR
Citations:
[1993] Fam 263, [1993] 2 FLR 437
Statutes:
Family Proceedings Rules 1991 9.2A(6), Children Act 1989
Jurisdiction:
England and Wales
Cited by:
Cited – Mabon v Mabon and others CA 26-May-2005
In the course of an action regarding their residence arrangements, the older children of the family sought an order to be allowed separate legal representation, and now appealed a refusal.
Held: The rights of freedom of expression and to . .
Lists of cited by and citing cases may be incomplete.
Children, Litigation Practice
Updated: 30 April 2022; Ref: scu.225554
