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 participate in family life now outweighed the former paternalistic view of the courts. As children grew older and more articulate it made less sense not to hear their voices. The three children who sought separate representation were aged 17, 15, and 13. It was unthinkable that they should not be involved in deciding their own futures. The practice hitherto had been paternalistic. The guidance in re S was now 12 years old, and much had changed since. As to the significance of the child’s understanding: ‘In my judgment the rule is sufficiently widely framed to meet our obligations to comply with both article 12 of the United Nations Convention on the Rights of the Child and article 8 of the European Convention of Human Rights, providing that judges correctly focus on the sufficiency of the child’s understanding and, in measuring that sufficiency, reflect the extent to which, in the 21st century, there is a keener appreciation of the autonomy of the child and the child’s consequential right to participate in decision making processes that fundamentally affect his family life . . . Although the tandem model has many strengths and virtues, at its heart lies the conflict between advancing the welfare of the child and upholding the child’s freedom of expression and participation. Unless we in this jurisdiction are to fall out of step with similar societies as they safeguard article 12 rights, we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare’.

Thorpe, Latham, Wall LJJ
Times 02-Jun-2005, [2005] EWCA Civ 634, [2005] 3 WLR 460, [2005] 2 FLR 1011
Family Proceedings Rules 1991 9.1A
England and Wales
CitedIn re S (A Minor) (Independent Representation) CA 1993
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 . .

Cited by:
CitedAxon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
CitedIn re K (A Child) FD 16-May-2011
The court was asked whether K, a 13-year-old girl, should attend the hearing of an application by her local authority to keep her in secure accommodation for three months. She wanted to be at the hearing, but the local authority opposed her . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.225876