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Best Practice: Pleading Defences to Applications under Hague Convention

Speakers

David Vavrecka

Consideration of the Rules and Practical hints in relation to Pleading Defences

Mark Twomey

The developing case law and the implications for pleading and proving defences

Gill Honeyman

Practical considerations when representing children

Practice note regarding judges seeing children

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Consideration of the Rules and Practical hints in relation to

Pleading Defences

1. The Rules

i. Set out in rules 12.43-12.57 Family Procedure Rules 2010 & Practice Direction 12F

International Child Abduction

ii. Court has general case management powers set out in rule 4 & within abduction

proceedings, rule 12.48, sets out specific matters on which court ‘may give

directions, among others’. Note that particular directions may be given regarding:

(d) the steps to be taken in the proceedings and the time by which each step is to be

taken;

(e) whether the child or any other person should be made a party to the proceedings;

(f) if the child is not made a party to the proceedings, the manner in which the child's

wishes and feelings are to be ascertained, having regard to the child's age and

maturity and in particular whether an officer of the Service or a Welsh family

proceedings officer should report to the court for that purpose;

(g) where the child is made a party to the proceedings, the appointment of a

children's guardian for that child unless a children's guardian has already been

appointed

(h) the attendance of the child or any other person before the court

(i) the appointment of a litigation friend for a child or for any protected party, unless a

litigation friend has already been appointed;

(k) the filing of evidence including expert evidence; and

(l) whether the parties and their representatives should meet at any stage of the

proceedings and the purpose of such a meeting

2. The obligation to file a defence

i. PD12F para 2.23 It is also particularly important that you present to the court any

defence to the application which you or the child might want to make at the earliest

possible opportunity, although the orders with which you have been served are likely

to tell you the time by which you will have to do this.

3. Preparation of evidence

i. Rule 12.50 The respondent to an application … may file and serve with the answer a

statement verified by the statement of truth, together with any evidence of which

the respondent intends to rely

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ii. Answer must be filed within 7 days beginning with the date on which the application

is served [unless court requested to direct otherwise]

iii. Statements should be ‘succinct’: Re S (Abduction: Intolerable Situation :Beth Din)

[2000] 1 FLR 454, Connell J

Secondly, and finally, I add that the written evidence in this case in my view has been far too extensive and discursive. The father’s first statement was commendably succinct. The mother’s first statement was longer but should have sufficed to present her case. It clearly set out her proposed defences to the originating summons and no more, in truth, was needed. Thereafter, both parties were sucked into the trap of filing further more detailed statements investigating much that has proved irrelevant or unhelpful to this inquiry. The same can be said of by far the majority of the supporting evidence. It must be remembered that Hague Convention applications are intended to be summary proceedings where the issues should be succinctly defined and the evidence should be confined to those issues. The parties’ legal advisers have a duty to the court to see that this is the case and should not permit the inevitable emotions which underlie such cases to provoke irrelevance, prejudice or prolixity.

iv. Rarity of oral evidence makes drafting of defence and statement more important;

see Thorpe LJ in Re K (Abduction: Case Management] [2011] 1 FLR 1268

First of all oral evidence in Hague cases is very seldom ordered. …... There should be

no departure from the well-recognised proposition that Hague applications are for

peremptory orders to be decided on written evidence amplified by oral submissions.

There are, of course, rare cases which demand the opportunity for the judge to hear

from the parties on a narrow issue that is in contention. Classically oral evidence will

be limited to those cases where the issue for the court is whether or not an

agreement was reached between the parents sufficient to establish the defence of

consent. ….Not only should orders for oral evidence be extremely rare but, in my

judgment, they should never be made in advance of the filing of written statements

on the point in issue. …… Finally, if there were to be the exceptional provision for

oral evidence, it should have been more strongly expressed to ensure that the

parties understood that this was not an opportunity to express their cases on the

generality.

In Re K (Abduction: Child’s Objections) [1995] 1 FLR 977 Wall J refused an

application for the admission of oral evidence

In these circumstances Mr Leech submitted that I should hear oral evidence in order

to make findings of fact which would substantiate the basis for the exercise of a

discretion under Art 13(b). Mr Leech argued that on the documents I was faced with

irreconcilable issues of fact which could only be resolved by oral evidence and that in

order to deal properly with the Art 13(b) defence those issues had to be resolved. It

was therefore necessary, he submitted, for me to hear his client and if need be to

adjourn in order to give the father the opportunity, should he wish to avail himself of

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it, to attend to give oral evidence himself. In my judgment Mr Leech’s submissions

on these points are unsound. First, the procedure under the Convention is summary.

The question is whether the children should be returned under Art 12 or whether

discretion should be exercised under Art 13. To hear oral evidence on disputed issues

of fact would defeat the essential purpose of the Convention which pursuant to Art 1

is to secure the prompt return of children wrongfully removed to or retained in any

Contracting State and to ensure that rights of custody and access under the law of

one Contracting State are effectively respected in the other Contracting States.

Moreover, in practice the effect of giving Mr Leech leave to call his client would on

the facts of this and, I imagine, the majority of cases result in oral evidence from one

side only, and for the mother to repeat in the witness-box the assertions which she

makes in her affidavit would not in my judgment advance the case in any material

respect. Further, it is not in my judgment necessary for there to be specific findings of

fact on contested issues for a defence under Art 13(b) to succeed. The court under

Art 13(b) is assessing risk, not resolving issues of fact, and indeed it may be

inappropriate for this court to make findings of fact if the factual issues are to be

litigated elsewhere.

However, in Re G (Abduction: psychological harm) [1995] 1 FLR 64

Ewbank J heard evidence: She was a sad sight in the witness-box. She is very

depressed and I had not any doubt when she said that she could not bear the

thought of going back that she was being genuine. She told me that in the USA she

was depressed and lonely and when she came back to England she was sleeping

better and she found her own family a great support to her and enabled her to cope

with the situation.

In addition, 2 experts. Dr Isaacs, a consultant psychiatrist instructed by the father,

and of Dr Caplan, on behalf of the wife

Having heard Dr Caplan and Dr Isaacs, I have to say that I find the evidence of Dr

Caplan more convincing than that of Dr Isaacs. One is always concerned in a case of

this sort as to what extent the court is being manipulated by a litigant who is

determined to get her own way and will use whatever manoeuvres are available to

try to force the court into a particular form of action. If I thought for a moment that

that was this case, I would not, of course, pay any attention to the evidence that I

received from the litigant in question, but I have to say that having seen and heard

the mother and seen and heard Dr Caplan, I am satisfied that this is a case where Art

13 does apply and that I am not bound to send these children back to the USA, and

taking into account all the circumstances of the case, I do not propose to make an

order that these children should go back to the USA. In my view, the effect of an

order returning the children to the USA would be that there would be a serious

deterioration in the mother’s condition and the children would be affected

accordingly.

See also N v N (Abduction: Article 13 Defence) [1995] 1 FLR 107

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DEFENCES UNDER ARTICLES 12 & 13 OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980

Table of Contents

LEGISLATION ................................................................................................................................ 6

DEFENCE 1: Consent or Subsequent Acquiescence (Article 13(1)(a)) ............................................... 7 Re P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588, [2010] 1 WLR 1237 ........... 7 Re H (Minors)(Abduction: Acquiescence) [1998] AC 72, [1997] 1 FLR 872 ........................................ 7 Re L (Abduction) (Future Consent) [2007] EWHC 2181 (Fam), [2008] 1 FLR 915 ............................... 8 Re G (children: abduction: habitual residence) [2007] EWHC 2807, [2008] 2 FLR 351 ...................... 9

DEFENCE 2: Parent not actually exercising custody rights (Article 13(1)(a)) .................................... 9 Re D (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 FLR 961 ................................... 9 Re V-B (Abduction: Custody Rights) [1999] 2 FLR 192........................................................................ 9 S. v. H. (Abduction: Access Rights) [1998] Fam 49 ........................................................................... 10 Re W. (Abduction: Procedure) [1995] 1 FLR 878, [1996] 1 FCR 46................................................... 10 Re C (A Minor)(Abduction) [1989] 1 WLR 654, [1989] 1 FLR 403 ..................................................... 10

DEFENCE 3: Grave risk of physical or psychological harm or place in an intolerable situation (Article 13(1)(b)) .................................................................................................................................... 11

Re S. (A Child) [2012] UKSC 10 .......................................................................................................... 11 Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 [2011] .................. 11 Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961.......................................... 12 Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996 ...................................................... 12 Re S (Abduction: Grave Risk of Harm) [2002] EWCA Civ 908, [2002] 3 FCR 43 ................................ 12 Neulinger and Shuruk v. Switzerland (Application No 41615/07) .................................................... 13

DEFENCE 4: CHILD’S OBJECTIONS (Article 13(1)(b)) ...................................................................... 14 X v Y and Z Police Force [2012] EWHC 2838 (Fam) ........................................................................... 14 Re J (Abduction: Children’s Objections) [2011] EWCA Civ 1448, [2012] 1 FLR 457.......................... 14 Re W (Minors) [2010] EWCA Civ 520, [2010] 2 FLR 1165 ................................................................. 15 WF v FJ, BF & RF [2010] EWHC 2909, [2011] 1 FLR 1153 ................................................................. 15 Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 FLR 251 ........................ 16 Re M (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72 ................. 16 Re T. (Abduction: Child's Objections to Return) [2000] 2 FCR 159 ................................................... 16

DEFENCE 5: CHILD SETTLED IN ITS NEW ENVIRONMENT (Article 12) ............................................. 17 Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 ...................... 17 C. v. C. [2008] CSOH 42, 2008 S.C.L.R. 329 ....................................................................................... 17 Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 FLR 1649 .................................................................................................................................................. 18 Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 .......................................................... 18

DISCRETION ............................................................................................................................... 19 Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 FLR 251 ....................... 19 Re D. (Abduction: Discretionary Return) [2000] 1 FLR 24 ................................................................ 19 Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716 ................................................................. 20

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LEGISLATION

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the

commencement of the proceedings before the judicial or administrative authority of the Contracting

State where the child is, a period of less than one year has elapsed from the date of the wrongful

removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the

expiration of the period of one year referred to in the preceding paragraph, shall also order the

return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the

child has been taken to another State, it may stay the proceedings or dismiss the application for the

return of the child.

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the

requested State is not bound to order the return of the child if the person, institution or other body

which opposes its return establishes that –

a) the person, institution or other body having the care of the person of the child was not

actually exercising the custody rights at the time of removal or retention, or had consented

to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or

psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that

the child objects to being returned and has attained an age and degree of maturity at which it is

appropriate to take account of its views.In considering the circumstances referred to in this Article,

the judicial and administrative authorities shall take into account the information relating to the

social background of the child provided by the Central Authority or other competent authority of the

child's habitual residence.

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DEFENCE 1: Consent or Subsequent Acquiescence (Article 13(1)(a))

Re P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588, [2010] 1 WLR 1237

The leading case on consent. The children were born and lived in Spain with the Spanish father and

Welsh mother. The mother took the children to Wales for 12months whilst the Spanish home was

renovated. Whilst in Wales the mother informed the father their relationship was over and she did

not wish to return to Spain however he persuaded her to try once more. She returned to Spain but a

month later returned to the UK with the children. The father issued proceedings and the High Court

ordered the return of the children. The mother appealed.

HELD, dismissing the appeal and ordering the return:

Ward LJ identified the following principles in relation to Consent under Article 13(a): 1. Consent must be clear and unequivocal; 2. Consent could be given to a removal at some future but unspecified time or upon the

happening of some future event; 3. Such advance consent must, however, still be operative and in force at the time of the

actual removal; 4. The happening of the future event must be reasonably capable of ascertainment; 5. Consent, or the lack of it, must be viewed in the context of the realities of the

disintegration of family life. It is not to be viewed in the context of nor governed by the law of contract;

6. Consequently consent can be withdrawn at any time before actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed;

7. The burden of proving the consent rests on the person who asserts it; 8. The enquiry is fact specific and the facts and circumstances will vary from case to case 9. The ultimate question is simply: had the other parent clearly and unequivocally

consented to the removal?

Re H (Minors)(Abduction: Acquiescence) [1998] AC 72, [1997] 1 FLR 872

The leading case on acquiescence. The parents were married and lived in both England and Israel.

The mother took the children to England from Israel; the father sought their return initially via

established orthodox Jewish procedures and only 6 months later did he issue proceedings under the

Hague Convention. The High Court ordered the return of the children, the Court of Appeal reversed

this decision finding the father had acquiesced. The father appealed.

HELD, allowing the father’s appeal and ordering the return:

No distinction should be drawn between active and passive acquiescence: the subjective intention of the wronged parent should normally be taken into account in deciding whether there has been acquiescence;

The trial judge in reaching his decision will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intentions;

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Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect reconciliation or agree a voluntary return of the abducted child;

There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show or have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are not inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.

A v T [2011] EWHC 3882 (Fam)

The mother was English and the father Swedish. They met in England and moved to Sweden where

they married. The mother became pregnant but was so unhappy that the parties entered into a

written agreement (and subsequent agreements) that she would be entitled to leave Sweden and

move to England with the children on a permanent or temporary basis should she ever choose to do

so. Several years later the mother returned to England, initially on a temporary basis, but then wrote

to the father informing him their marriage was over and she intended to remain in England

permanently The father issued proceedings for the return of the children claiming that his consent

to a permanent removal several years earlier was suspended by the subsequent temporary removal.

HELD, dismissing the father’s application:

The father’s consent was clear and unequivocal: it had not been withdrawn and had in fact been reiterated;

It did not follow that in every case where a mother takes children out of the jurisdiction for a limited period, a clear and unequivocal agreement as to permanent removal is automatically superseded;

Although the mother’s defence of consent was made out, a defence of acquiescence would not have been.

Re L (Abduction) (Future Consent) [2007] EWHC 2181 (Fam), [2008] 1 FLR 915

The parents of two children (living in the United States) had a trial separation, and signed a ‘Marital

Separation Agreement’ which included a provision that if separation lead to divorce the mother

would be free to locate to the UK. The mother remained unhappy and the father wrote to her

inviting her to relocate to the UK and that he would join her once he had secured employment. The

mother took the children to the UK for a holiday (having enrolled them to re-commence school in

Florida thereafter) but upon arrival in the UK informed the father she did not intend to return. The

father immediately initiated return proceedings, the mother claimed their agreement amounted to

prior consent.

HELD, ordering the return of the children:

In principle consent could be attached to some future event, even of uncertain timing, provided that the happening of the event was of reasonable ascertainability;

That discussions between the parties about the ‘holiday’ to the UK accompanied by the purchase of return tickets, modified or replaced the earlier permission which the mother previously received;

Where the removing party knew that the left-behind parent would not have continued their consent at the time of removal had they known the full facts then the consent defence would fail even though the original consent may never have been expressly withdrawn.

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Re G (children: abduction: habitual residence) [2007] EWHC 2807, [2008] 2 FLR 351

The Father agreed to an attempt at reconciliation with the Mother who had abducted their child. It

was made very clear, in writing, on behalf of the Father, that his engagement with the proposed

reconciliation was not to be read as acquiescence or consent. When the attempts at reconciliation

broke down, the Father was able to able a second (and successful) child abduction application as the

Mother was unable to rely on Article 13(a).

DEFENCE 2: Parent not actually exercising custody rights (Article 13(1)(a))

Article 5

For the purposes of this Convention –

. a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

. b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

Re D (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 FLR 961

Following their divorce, the mother was granted custody of the child. She removed the child from

Romania to England without the father’s consent, and in response to his application under the

Hague Convention, stated that joint custody ended upon their divorce. The English court sought

clarification from the Romanian courts (under Article 15) who confirmed that under Romanian

legislation at the time, a non-custodial parent did not have a right of veto or to decide the place of

residence. The English court’s by-passed the Romanian ruling and instructed an expert who found

the father did have a right of custody, and the courts ordered an immediate return notwithstanding

the passage of three years. The mother appealed and the child was given leave to intervene.

HELD, allowing the mother’s appeal:

An Article 15 ruling must be treated as conclusive (save exceptional circumstances): the English courts should not have gone behind the Romanian ruling;

A right of veto amounts to a right of custody under the Hague Convention although a potential right of veto does not: a right of custody is different to a right of access;

Re V-B (Abduction: Custody Rights) [1999] 2 FLR 192

On divorce the mother was granted rights of custody over the two children,

the father granted rights of access. The mother was to inform the father of

matters including change of schools, medical treatment and residence

abroad for periods exceeding 1 month. She informed the father that she

intended to relocate from the Netherlands to Wales and subsequently did

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so. The father’s application for the return of the children was dismissed on

the basis that the removal was not wrongful as he had not been exercising

rights of custody. The father appealed.

HELD, dismissing the father’s appeal:

The proper approach to the consideration of whether or not the father's rights amounted to rights of custody was to view the expression broadly, endeavouring to give it a universal meaning, but, one which preserved the distinction between rights of custody and access.

A right to be consulted gave the father a right to seek a ruling from a Dutch court as to where the children were to live; it was not a right of veto.

S. v. H. (Abduction: Access Rights) [1998] Fam 49

The parents and the child lived in Italy. The parents were not married and

did not cohabit. The Italian courts had awarded custody to the mother

twice (and the father access). The mother subsequently removed the child

to England. The father commenced return proceedings and the Italian

courts granted a declaration recognising the father’s ‘right to visit’.

HELD, dismissing the father’s application:

The applicant has the burden of proving his or her rights under the law of the child’s State of habitual residence;

Existing English case law does not enable one to conclude that the mere possibility of a parent who has rights of access succeeding in an application to prevent the other parent taking the child abroad amounts to rights of custody under the Convention.

Re W. (Abduction: Procedure) [1995] 1 FLR 878, [1996] 1 FCR 46

The child was born in Australia. The mother had custody but neither parent could remove the child

from Australia without the consent of the other. The mother removed the child to England, the

Sydney family courts ordered the return but the English High Court dismissed the father’s

application for the return. The father appealed.

HELD, allowing the father’s appeal and ordered the immediate return:

What matters is whether the rights of the parent fall within the Convention definition of rights of custody as opposed to how they are described in national law;

If anyone (an individual, the court, or other institution) has a right to object to the removal of the child out of the jurisdiction and is either not consulted or refuses to consent then the removal will be wrongful within the meaning of the Convention.

Re C (A Minor)(Abduction) [1989] 1 WLR 654, [1989] 1 FLR 403

The child was born in Australia (Australian father, English mother). By consent order (1) the mother

was granted custody with both parents as joint guardians and (2) neither parent was to remove the

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child from Australia without the other’s consent. The mother removed the child and argued it was

not wrongful on the basis of the father not having a right of custody.

HELD

The court held that the 2nd clause of the parties’ consent order granted the father custody rights as per Article 5 of the Hague Convention. Therefore the mother’s removal of the child without the father’s consent constituted a wrongful removal within Article 3. Whether a person held a right of custody was to be considered within the law of the State in which the child was habitually resident immediately prior to the removal or retention.

DEFENCE 3: Grave risk of physical or psychological harm or place in an intolerable situation (Article 13(1)(b))

Re S. (A Child) [2012] UKSC 10

The child was born in Australia to an Australian father and dual English-Australian mother. It was

acknowledged that the father had been a heroin addict prior to meeting the mother, and during the

course of their relationship there were issues of the father’s alcohol abuse and alleged domestic

violence. The mother removed the child to England without the father’s consent; the father issued

proceedings for the return of the child and offered up undertakings to assuage the mother’s anxiety

about returning. A return order was refused on the grounds that notwithstanding the undertakings

and protective measures available the child would be exposed to a grave risk under Article 13(1)(b).

The father’s appeal was upheld by the Court of Appeal; the mother appealed.

HELD, allowing the mother’s appeal and refusing the return:

Although it was ‘inconceivable that the court would order a return where Article 13(1)(b) had been made out the court nonetheless had discretion to order the return;

Anxieties which were subjective as opposed to an objective risk, such as those of the mother, could in principle meet the Article 13(1)(b) exception: the fact that those risks were subjective should not be afforded lesser weight and it does not matter whether those anxieties were reasonable or unreasonable;

Where a trial judge found the protective measures did not obviate the grave risk to the child it was not open to the Court of Appeal to substitute its contrary view.

Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 [2011]

The family (British mother, Norwegian father and two daughters) lived in Norway. The mother’s

teenage daughter (from another relationship) moved to live in England and the mother followed,

taking the two girls. The father immediately applied for their return. The mother’s defence that she

suffered from adjustment disorder and that her reaction to a return order would constitute a grave

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risk of harm to the children was rejected by the trial judge; the judge also refused the mother’s

request that there be documentary proof of the protective measures offered by the father. The

Court of Appeal dismissed the mother’s appeal; she sought leave to appeal to the Supreme Court.

HELD, dismissing her appeal and upholding the return order:

There was no need for Article 13(1)(b) to be narrowly construed;

The applicable standard of proof is the ordinary balance of probabilities;

Trial courts must have regard to the summary nature of Hague Convention proceedings and oral evidence should rarely be heard;

The risk to the child must be ‘grave’ as opposed to ‘real’;

‘intolerable situation’ could be given a subjective interpretation from the perspective of the child concerned and although every child must be expected to put up with some discomfort and distress there were certain things that it would not be reasonable to expect a child to tolerate;

Article 13(1)(b) looks forward and contemplates what the child would face, were they to be returned;

Although there was no reason to doubt that the risk to the mother’s health was real, and that if it were to deteriorate there would be a grave risk of psychological harm to the child, the trial judge had considered the protective measures to be adequate and it was not for the appellate court to disagree with that assessment.

Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961

HELD: Inter alia that it was inconceivable that a return could be ordered where Article 13(1)(b) had

been made out (Baroness Hale)

Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996

Two sisters were wrongfully removed from Venezuela to England by their mother in 2002, before

returning them under a return order. In June 2005 the mother was the victim of a pre-meditated

shooting (as was the father). In July 2005 the mother removed them again pursuant to a court order

but then retained them and the father issued proceedings again. The High Court found that return

the girls would expose them to a grave risk of harm; the father appealed.

HELD, dismissing the appeal and refusing the return:

Given the previous pre-meditated and targeted attacks to the parents, the children were in danger of physical injury if present with either of their parents at the time of such attacks (24 hour protection would reduce but not diminish this risk);

Although some of the mother’s evidence was shaky, the court found there was also a risk of emotional harm if the children were returned; it indicated that the physical risks alone may have met the 13(1)(b) test but reiterated that this was an exceptional case.

Re S (Abduction: Grave Risk of Harm) [2002] EWCA Civ 908, [2002] 3 FCR 43

The child was born in Israel to an English mother and Australian father, who married, became Israeli

citizens and both exercised rights of custody. The mother removed the child to England; in response

to the father’s application for the return of the child she did not dispute the removal was wrongful

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but invoked Article 13(1)(b) saying: (a) the child would be at risk of psychological and physical harm

in Israel given the security situation there; (b) that she herself was at a grave risk of physical and

psychological harm if she had to return which in turn would harm the child, of whom she was the

primary carer; (c) the child would suffer grave harm without the day to day care of the defendant

since the father would be unable to provide such primary care. The High Court ordered the return of

the child, after some delay the mother appealed.

HELD, dismissing the appeal and ordering the return:

An abducting mother should not be allowed to rely on her own wrong-doing to justify the child’s non-return however in this case, accepting her fear of return was an illness, the court held the facts pleaded by the mother were capable of amounting to a defence;

The court should consider firstly where there there is a grave risk of harm and secondly whether it was established to the extent that it would lead one to say the child would be placed in an intolerable situation if returned.

Neulinger and Shuruk v. Switzerland (Application No 41615/07)

The child was born in Israel to a Swiss mother and Israeli father. The mother alleged that the father

had joined an ultra-orthodox Jewish sect and given her fears that he would take the child abroad to

a community of the sect, obtained an order prohibiting the removal of the child from the

jurisdiction. The parents divorced: the mother was awarded custody and the father access but the

previous order endured. The mother secretly took the child to Switzerland. The father obtained an

order from the Israeli courts confirming the removal was wrongful and he issued an application for

return. The court in Switzerland declined to order the return, finding the grave risk of harm

exception to have been established, the appellate Swiss court dismissed the father’s appeal however

the Federal Swiss court ordered the return. The mother took the case to the European Court of

Human Rights who ordered the Swiss Government not to proceed with the return, and then found

(4-3) that there had not been a breach of the mother and child’s rights under Article 8 ECHR. The

mother requested the case be referred to the Grand Chamber.

HELD, overturning the Court’s decision:

That enforcement of the return order would violate the mother and child’s rights under Article 8 ECHR (16-1);

In matters of child abduction, the obligations of Article 8 of the ECHR (right to respect to family and private life) had to be interpreted taking into account the 1980 Hague Convention and the 1989 UN Convention on the Rights of the Child;

The Court was competent to review the procedure followed by domestic courts, particularly to ascertain whether in applying and interpreting the 1980 Hague Convention they had secured the guarantees of the ECHR, especially of Article 8 of the ECHR.

The two limbs to the ‘child’s interests’ (maintaining the child’s ties with its family vis-à-vis ensuring the child’s development in a sound environment) mirrored the tension in the Hague Convention where the prompt return mechanism was balanced against the exceptions to return, notably under Article 13(1)(b).

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DEFENCE 4: CHILD’S OBJECTIONS (Article 13(1)(b))

X v Y and Z Police Force [2012] EWHC 2838 (Fam)

The mother ("X" in the judgment) applied under the Child Abduction and Custody Act 1985 and

Hague Child Abduction Convention 1980 for summary return of her three children (A, B and C) to

Australia. It was accepted that the father ("Y" in the judgment) had abducted them to the UK. The

father stated that:

1. Summary return would place the children at grave risk of harm or otherwise put them in an intolerable situation because the father had been employed as an undercover police officer for many years and circumstances had arisen which rendered it unsafe for him or his family to return to Australia; and

2. Child A objected to summary return so the court should exercise its discretion not to return him, and to return the two younger children without A would put them in an intolerable situation.

By the time the matter came before Baker J the mother had returned to this country and

arrangements had been put in place for the interim care of the children to be shared.

HELD, dismissing the mother’s application and refusing to return the children:

The Article 13(1)(b) defence was established on the basis of credible evidence of a grave risk of harm;

The fact the father’s initial actions had exposed the children to a grave risk of harm did not justify the court ordering a return that itself would equally expose them to such a risk.

Re J (Abduction: Children’s Objections) [2011] EWCA Civ 1448, [2012] 1 FLR 457

The father sought the return of his three children (aged 15, 13 and 10) to Poland following the

retention of the children in the UK by their mother. At trial the mother gave oral evidence

recounting her conversation with the 15 year old in an attempt to fortify her objections defence. She

did however state that if the return order was made she would return with the children but live in a

different town from the father pending the outcome of her extant application for leave to remove

the children from Poland. The trial judge found the Article 13(1)(b) objections defence was made out

but nonetheless exercised his discretion to return the children. The Mother appealed.

The children were not separately represented at first instance but were granted permission to

intervene in the Court of Appeal. Their grounds were that:

(a) the judge failed to make a clear finding about the children's objections; and

(b) the judge had failed to engage the children in the process.

HELD, upholding the children’s appeal but dismissing the mother’s appeal:

The trial judge was plainly wrong not to make a clear finding about whether or not the children objected;

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The trial judge should have at least raised with the parties the need for the children to meet him face to face, although this ground in itself would not have led to the judgment being overturned;

The judge was not plainly wrong not to join the children to the proceedings of his own motion.

Re W (Minors) [2010] EWCA Civ 520, [2010] 2 FLR 1165

The three children had lived in Ireland with their British mother and Irish father. The mother

removed them to London; the father followed and attempted to persuade her to return. She

refused, he returned to Ireland and issued proceedings. At the time of the hearing the children were

8,6 and 3 years old. The High Court refused the father’s application finding that although the

removal was wrongful the older children had valid objections and should not be sent back, and if the

youngest child was returned alone there was a grave risk he would be exposed to psychological

harm or be placed in an intolerable situation. The father sought leave to appeal.

HELD, refusing the application for leave and confirming the non-return order:

The trial judge had been entitled to accept the objections of the two older children and exercise her discretion in not returning any of the children;

Article 12 UN CRC has resulted in courts taking into account (if not necessarily acting in accordance with) the wishes of children of a younger age than was perhaps envisaged by the drafters of the Hague Convention;

There was a risk that lowering the age at which a child’s objections might be taken into account might slowly erode the summary nature of the Convention – but there was a safeguard in the fact that the exercise of discretion would afford greater weight to the objections of an older child than to a younger child.

With regard to the requisite maturity of the child, the threshold is relatively low: there is no requirement that objections must be so solidly based that they would likely be determinative of the subsequent discretionary exercise

WF v FJ, BF & RF [2010] EWHC 2909, [2011] 1 FLR 1153

The mother wrongfully removed her two children from England to Germany and the father sought

summary return. The elder child ‘B’ (born 1996) was competent to instruct directly a children’s

solicitor as her litigation friend. The younger child ‘R’ (born 1998) who was assessed as having a

functioning age of 12-18months lower than his chronological age was represented by a Cafcass

officer. The judge was satisfied that B had a ‘clear and unequivocal’ objection to returning to

Germany and had an appropriate degree of maturity; the judge was also satisfied that R had clearly

indicated he did not wish to return and had also attained a degree of maturity where it was

appropriate to take account of his views. In light of Re M (Zimbabwe) the judge considered the

exercise of his discretion and although he found R’s objections to carry less weight than B’s, to

return R alone would be to place him in an intolerable situation. The judge noted that it is preferable

that a child should, time and resources permitting, be seen by the CAFCASS High Court team before

any decision is taken as to party status.

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Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 FLR 251

Once the views of the child are before the court the court will consider them and determine whether or not they should affect the outcome of the hearing;

It is not enough for the child merely to state a preference to remain in the new jurisdiction: the objection must have sufficient strength of feeling which goes far beyond the ascertainment of the child’s wishes

The court must consider whether the child has attained a level of maturity so as to have their

view taken into account.

Re M (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72

The child was born in Serbia to a British mother and Serbian father; the mother was awarded

custody, the father access. The mother took the child to England; Serbian courts awarded the father

interim custody and he issued proceedings in the English High Court. The mother gave, and then

withdrew her consent to a return order and invited the court to hear the views of the child. The child

was interviewed but the court nonetheless declined to amend or recall the consent order. The

mother returned to Serbia during which time she was arrested in front of her daughter on several

occasions for possession. The mother then removed the child to England again, and the High Court

again ordered the return of the child. The mother petitioned for leave to appeal.

HELD, allowing her appeal and refusing the return:

The child’s objections had reached the standard set out in Article 13(2) using the ‘gateway’ structure proposed by Ward LJ in Re T;

The requirement to ascertain the views of a child of sufficient age and maturity was a requirement of universal application;

The child’s animosity towards Serbia may have been partly influenced by her hostility towards her father but her objections to being returned to Serbia were sufficiently well-founded and reasoned.

Re T. (Abduction: Child's Objections to Return) [2000] 2 FCR 159

Generally agreed as the lead authority on the child’s objections defence. The parents separated, and

held joint custody over two children whose home was in Spain. The father removed the children to

England whilst custody proceedings were on –going in Spain. The English High Court ordered the

return of the children, saying the girl was not of sufficient maturity for her objections to meet the

Article 13(2) test. The father appealed.

HELD, allowing the appeal and refusing the return:

The standard required under Article 13(2) had been made out in respect of the older child and the younger child would accordingly face an intolerable situation (Article 13(1)(b)) if returned alone;

Three general matters were to be established where Article 13(2) was raised:

1. Whether the child objects to being returned to the country of habitual residence as

opposed to being returned to the left-behind parent (acknowledging that the two types of

objection were often inextricably linked)

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2. The age and degree of maturity of the child, and in this does the child's maturity

correspond with his chronological age? The court noted that a child may be mature enough

for it to be appropriate for his views to be taken into account even though he may not have

gained sufficient maturity to be fully emancipated from parental dependence and be able to

claim autonomy of decision making.

3. Is it appropriate to take account of the child's views? In deciding this matter four sub-

issues arise:

a. What is the child's own perspective of what is in his interests, short, medium and

long term?

b. To what extent are the reasons for objection rooted in reality, or might

reasonably appear to the child to be so grounded?

c. To what extent have the child's views been the subject of undue influence?

d. To what extent will the objections be mollified on return, or, upon removal from

the abductor?

The issues raised in Article 13(2) demand more an exercise of judgment than findings of fact.

DEFENCE 5: CHILD SETTLED IN ITS NEW ENVIRONMENT (Article 12)

Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288

The girls were 13 and 10 at the time of the hearing. The mother moved abroad in 2001, and then

returned to Zimbabwe in 2004, having sporadic contact with the girls over this time. The mother

removed the children and took them to the UK: on arriving at Heathrow she sought asylum. The

father’s application for return was not made until May 2007 however the trial judge ordered the

return of the girls notwithstanding they were of an age and maturity for their views to be taken into

account, and they had settled in the UK. The Court of Appeal dismissed the mother’s appeal but she

was granted leave to appeal to the House of Lords.

HELD, allowing her appeal and refusing the return order:

The construction of Article 12(2) leaves open the inherent discretion where settlement is established;

Settlement is a flexible concept which might arise in a wide variety of contexts to varying degrees;

It is recommended that children are separately represented where settlement is at issue.

C. v. C. [2008] CSOH 42, 2008 S.C.L.R. 329

The children were almost 15, 11 and 9 ½ at the time of the hearing. After protracted litigation the

mother was awarded custody, the father contact. During contact the father removed the children

and travelled with them for six months before staying in the Philippines and then Scotland. The

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mother discovered their location and issued proceedings for their return over 2 ½ years from the

date of removal. The defence of the child’s objections and settlement was raised.

HELD, allowing the application and ordering the return:

Settlement required more than mere adjustment to surroundings, rather it comprised a physical element of being established in a community and an emotional constituent denoting security and stability. It had to be determined whether the evidence showed that the interest of the children in not being uprooted was so cogent that it outweighed the primary purpose of the Convention;

Regard also had to be paid to the future circumstances of the children;

Furthermore where there was evidence of concealment a broad and purposive construction of settlement was required to reflect the actions which had contributed to the passage of time.

The father had exercised a strong influence over the children’s ‘objections’ (albeit they were of an age and maturity for their views to be taken account of).

Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 FLR 1649

The mother of two girls (aged 6 and 9 at the time of the hearing) took them from Mozambique to

the UK (after having travelled extensively around Africa) for the purposes of a holiday but then

disappeared. The father eventually located them, during which time the mother’s application (and

appeal) for asylum was refused. Mozambique is not a party to the Hague Convention so the father

applied for the children’s return under the court’s inherent jurisdiction, and a return order was

made. Due to several immigration delays the mother asked the court to reconsider and the trial

judge discharged his original order on the basis that the children had become more settled. The

father appealed.

HELD, allowing the appeal and ordering the return:

Notwithstanding the passage of nearly three years it was in the best interests of the children to be returned to Mozambique as the mother’s status in the UK as a failed asylum seeker was precarious;

That in looking to the future, there was no realistic prospect of the children having a settled future residence in the UK

NB. The standard applied to the ‘settlement’ defence appears to be stronger here than as set out in

the decision of the House of Lords in Re M that preceded this decision. It may be that this is because

this is a non-Convention case.

Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169

The 10 year old girl was retained in Ireland by the mother after an agreed holiday. The father issued

proceedings under the Convention, the mother briefly agreed to return but then removed the child

again shortly after in 1999. The child was not located until 2003 living under an assumed identity in

Liverpool. She was placed in care pending the return proceedings. In 2004 the court found that the

child was settled in her new environment and held that a return order could not therefore be made.

The father appealed the legal interpretation placed on Article 12(2) by the trial court.

HELD, allowing the father’s appeal:

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It was not enough to regard only the physical characteristics of settlement, rather equal regard must be paid to the emotional and psychological elements;

Where there was concealment the burden of demonstrating the necessary elements of emotional and psychological settlement was much increased.

There should not be a ‘tolling rule’ whereby the amount of time where the child was concealed should be subtracted from the total period of delay in order to ascertain whether or not the twelve-month mark had been exceeded: instead the court should look critically at any alleged settlement which was built on concealment and deceit

DISCRETION

Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 FLR 251

Leading case on the exercise of discretion in Hague Convention cases.

Baroness Hale stated the following principles:

It is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention [40];

There remains a distinction between the exercise of discretion under the Hague Convention and the exercise of discretion in wrongful removal or retention non-Convention cases, where the decision whether to return a child will be understood in the light of the general understanding of the harm which wrongful removal can do;

In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of the children, but also comity between the Contracting States and respect for one another’s judicial processes [41];

The weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be [44].

Re D. (Abduction: Discretionary Return) [2000] 1 FLR 24

The children were born and lived in France. The parents divorced and the father moved to England;

the mother was awarded custody and he was granted access. The mother wrote to the father twice

(over a period of two years) inviting him to take over responsibility for the children. The father

travelled to France and brought the children back to England. The mother then claimed she had only

agreed to the children going to England on a temporary basis, however over the following 6 months

she brought bedding and clothing to them in England and wrote to her children seemingly accepting

the situation. She then issued proceedings for their return.

HELD, allowing her application and ordering the return:

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Although the mother’s actions were such as to indicate consent to the children moving to England the court exercised its discretion to order the return.

While the welfare of the children was important it was not paramount.

Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716

The boys were 7 ½ and 6 years old at the date of the alleged wrongful retention. The parents

separated and entered into an agreement where the father (living in the United States) had custody.

Following a visit to their mother in Wales, the mother refused to return the boys and commenced

wardship proceedings. The High Court refused to return the boys and the father appealed.

HELD, allowing the father’s appeal and ordering the return:

There should be a relatively flexible approach to the gateway findings of age and objection - the weight to be given to objections would vary with the age of the child, but the policy of the Convention would always be a very weighty factor (Balcombe LJ);

Conversely: that if it was appropriate to consider the views of a child then those views should prevail unless there were countervailing factors, which would include the policy of the Convention (Millet LJ).

Millet LJ’s reasoning was adopted by Ward LJ in Re T. (Abduction: Child's Objections to Return) [2000]

2 FCR 159 which in turn was implicitly accepted in Re J. (Abduction: Child's Objections to Return)

[2004] EWCA CIV 428, [2004] 2 FLR 64. However it was rejected in Zaffino v. Zaffino (Abduction:

Children's Views) [2005] EWCA Civ 1012; [2006] 1 FLR 410, and Balcombe LJ’s approach has been

upheld.

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Hearing the child in Hague Convention proceedings

The court’s obligation to ensure the child is heard

Article 11(2) of Brussels II (revised) provides that:

“When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is

given the opportunity to be heard during the proceedings unless this appears inappropriate having

regard to his or her age or degree of maturity”

In Re D (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 FLR 961 Baroness

Hale commented that although strictly Art 11(2) BIIR applied only to cases within the EU it was

consistent with international obligations under the UN Convention on the Rights of the Child, Article

12, to apply it generally. The presumption therefore in all Hague Convention cases is that every child

will be heard unless this appears inappropriate.

When should the issue be raised?

In Re F (Abduction: Child’s Wishes) [2007] EWCA Civ 468, [2007] 2 FLR 697 the Court of Appeal

underlined the importance of hearing the child and stated that the question of how and when the

court would hear the child must be considered the first directions appointment, not least because of

the obligation in EU cases to hear the application within six weeks.

How can the child be heard?

By means of an interview by a Cafcass officer

By being joined to the proceedings and being represented by a Cafcass guardian who instructs a legal representative

By being joined to the proceedings and being represented by a solicitor who acts as children’s guardian

By meeting the judge

By a combination of the above.

The role of Cafcass High Court Team

NB: the High Court Team is currently based at Sanctuary Buildings in Westminster (DX 157050

Westminster 3) telephone 0844 353 3350. The service manager, John Mellor, is highly experienced,

having previously managed the PRFD team.

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Its members are experienced Cafcass officers, whose workload covers a small number of specialist

areas such as international cases, including wardship with international element, non Hague

summary return applications, BIIR Art 11(6-8) welfare-based return applications as well as Hague

Convention proceedings. They can be appointed as children’s guardians in any of these cases and it

would be exceptionally rare for Cafcass to appoint any other officer as guardian in a Hague

application.

Views and objections reports

HCT members are frequently directed to report on the children’s views and any objections they may

have to returning to the country to which return is requested. The expression “views and objections”

report is often preferred to “wishes and feelings” in Hague Convention proceedings as it more

accurately describes what it is the court needs to know about.

If the child needs to be seen in a Hague case, including but not limited to those cases where there

may be a “child’s objection” defence, HCT can normally do the interview and a report within three

weeks of a direction provided that they are informed. Don’t wait for the order to reach them, phone

them from court on the day. Ideally consult with them prior to fixing the next date.

There is always a HCT member on duty during the working week. The person due to be on duty on

the date fixed for the next hearing may well be the person allocated to see the children and report

to the court. In cases of real urgency they may report more quickly by giving an oral report. They

often ask that the child is brought to the RCJ (where they have a room for the purpose) to see them.

It is worth remembering that, following Baroness Hale’s speech in Re M (Abduction: Zimbabwe)

[2007] UKHL 55, [2008] 1 FLR 251, the child will almost always be joined as a party in cases where a

settlement defence is raised so generally it’s sensible to seek that direction at first hearing rather

than going through the process of a views and objections report first.

Should very young children be seen by a Cafcass officer?

The age at which it is considered appropriate for children to be seen has come down in recent years.

The child in Re F (supra) was 7 and it was held that the failure to “hear” her was a fundamental

deficiency.

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In Re W (Minors) [2010] EWCA Civ 520, [2010] 2 FLR 1165 the HCT officer had interviewed children aged 8 and nearly 6 and advised the court that their level of maturity was commensurate with their ages. Both described fear of their father and described incidents of domestic abuse and both objected strongly to a return. Wilson LJ was clear that it was open to the judge to have concluded that their degree of maturity, along with their ages, made it appropriate for her to take their objections into account.

Accordingly the practice is for all but very small children to be seen.

What else to specify in the order for a views and objections report

If any party suggests that there may be a reason for the children to be joined as parties, the report should be asked to address that issue.

Provision for a report and for the officer to be available to give evidence.

Arrangements for bring the child for interview, including possibly provision for the travel costs of the adult and children to be considered as a disbursement on a public funding certificate.

What documents are to be provided to the HCT, by when and by whom.

NB: this isn’t a full welfare enquiry, but the court expects the Cafcass officer to express opinions

about the extent to which the child’s objections (if any) are cogent, rooted in reality and to what

extent the child’s views have been the subject of undue influence. Without the opportunity to meet

the parents or make in depth enquiries, the officer does rely on the representatives to ensure that

she or he has the documents, including any which are filed after the direction is made. See Re D

(Abduction: Child’s Objections) [2011] EWCA Civ 1294, [2012] 2 FLR 266 for a case which went

wrong because the Cafcass officer didn’t have the full picture.

The child as party to Hague Convention proceedings

Rule 16.2 of the Family Procedure Rules 2010 (FPR 2010) provides that in family proceedings the

court may make the child a party if it considers it in the best interests of the child to do so. Para 7.1

of PD 16A provides that the child will only be joined “in cases which involve an issue of significant

difficulty” and that consideration should be given to alternative routes, such as further work by a

Cafcass officer.

In Hague proceedings there has been a shift away from the traditional position that children should

only be joined in exceptional cases.

In Re D (Abduction: Rights of Custody) [2006] UKHL 51 Baroness Hale opined that in most cases an

interview with a Cafcass officer wold be sufficient, and that only in a few cases would full scale legal

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representation be necessary, “But whenever it seems likely that the child’s views and interests may

not be properly presented to the court, and in particular where there are legal arguments which the

adult parties are not putting forward, then the child should be separately represented.”

In Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 FLR 251, as mentioned above, Baroness

Hale’s opinion was that it should be routine for the child to be a party in settlement case. The test

she laid down for all other cases was: “whether the separate representation of the child will add

enough to the court’s understanding of the issues that arise under the Hague Convention to justify

the intrusion and the expense and delay that may result.” She declined to classify cases in which

representation is justified as “exceptional”.

Ryder J, in Re C (Abduction: Separate Representation of Children) [2008] EWHC 517 (Fam), [2008] 2

FLR 6, confirmed that the test laid down in Re M (supra) was to be applied without gloss. The eldest

child was 16 and therefore the application in respect of her was made under the inherent

jurisdiction; she was to be separately represented and could instruct her solicitor directly. The other

children (aged 13, 11 and 9) were also joined and to be represented by a guardian; Ryder J took the

view that the substance of the application had already well and truly intruded into their lives and not

having the opportunity to say what they thought, and why, was more likely to cause them harm than

allowing them to have their position advocated on their behalf.

In WF v FJ, BF and RF (Abduction: Child’s Objections) [2010 EWHC 2909 (Fam), [2011] 1 FLR 1153

the children, aged 12 and 13, had been joined without having seen a Cafcass officer; they had been

taken to see a highly experienced solicitor who successfully applied for them to have party status.

Baker J, while not issuing guidance, expressed the view that it was “clearly preferable, where time

and resources permit, for the child to be seen by Cafcass High Court Team before any decision is

taken as to party status.”

Issues to consider in relation to party status

Remember what the test is, and isn’t. The fact that a child is competent doesn’t mean that she or he should be a party. A child might have strong and cogent objections, but if these are set out in the Cafcass report, does she need to be represented?

Will the children, if separately represented, be able to put distinctive submissions and defences from those put by the respondent?

Will there be delay? There may be none if the issue is raised early.

What’s the nature of the intrusion, on the particular facts of the case?

The need for a guardian

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In WF v FJ, BF and RF (supra) Baker J referred to a “lacuna” in the 1991 rules in that r9.2A, which

permitted a competent child to instruct a solicitor directly, did not apply to Hague proceedings. This

apparent lacuna was not however altered by the FPR 2010. Rule 16.6 permits a child to conduct

private law proceedings with a children’s guardian or litigation friend but only in the types of

proceedings listed at r16.6(1), which includes inherent jurisdiction proceedings but not Hague

Convention proceedings.

It may be argued that the rationale for this omission would appear to be that (a) Hague Convention

proceedings are sui generis and not welfare based proceedings and (b) to permit a child to instruct a

solicitor directly may cause delay which might cause breaches of treaty obligations in terms of

ensuring the proceedings are completed with due expedition.

On the other hand, in a jurisdiction where a child’s wishes, feelings and objections to its summary

return are a central issue within the proceedings, it might be thought anomalous that the child who

is capable of giving instructions does not have the right to instruct a solicitor direct. Furthermore, in

many cases, applications are made for the summary return of children both under the Hague

Convention and under the inherent jurisdiction. Under the current rules a child can instruct a

solicitor directly under the latter, but not under the former.

Accordingly a child who is joined must have a children’s guardian pursuant to r16.4. The duty of the

children’s guardian, as defined by para 7.6 of PD 16A is “fairly and competently to conduct

proceedings on behalf of the child”. A children’s guardian who is an officer of Cafcass has all the

additional duties set out in Part 3 of that PD, including obligations to appoint a solicitor, conduct

investigations, advise the court on a number of specified issues and to report to the court.

Who should be appointed as guardian?

This is a matter for the court, but generally speaking the younger the child the more likely is that a

guardian should be a member of HCT.

Cafcass guardian

In settlement cases the Cafcass guardian would generally see the child at home, in their local

community, possibly at school, and make a range of enquiries with a view to assisting the court in

understanding the extent to which the child is or is not genuinely settled. Plainly these are enquiries

a solicitor acting as guardian is not in a position to make.

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In objections cases the court will look to the Cafcass guardian for an analysis of the strength,

substance and cogency of the objections as well as the extent of any pressure, influence or other

underlying factors.

In grave harm/ intolerability cases the guardian’s enquiries may include discussions with social work

and other professionals in this and other jurisdictions as well as focussed, in-depth interviews with

parents and possibly observation of contact, albeit a full welfare enquiry would not be carried out.

In all these cases the guardian may be expected to offer the court advice or information about the

factors relevant to the exercise of discretion, including about the measures necessary to ensure a

safe return should the application succeed. The guardian will prepare a report and the child’s

solicitor may file a defence if appropriate; the guardian will attend hearings and be available to give

evidence.

There may therefore be “welfare” arguments in favour of a Cafcass guardian. HCT instruct Cafcass

Legal (same DX and phone number) unless for some reason the children have already seen a solicitor

in private practice, in which case that solicitor may be instructed.

Solicitor in private practice as children’s guardian

This is more likely to be appropriate for older children (say 14 or 15) who are competent and anxious

to instruct their lawyer directly, albeit that lawyer will have effectively a dual role.

Ideally the solicitor would be on the Law Society’s Children Panel, or have substantial experience of

representing children, as well as being an experienced practitioner in this field.

The solicitor generally files evidence about the child’s views and may also file a defence. While oral

evidence is rare in Hague proceedings the solicitor may be cross-examined about the contents of the

affidavits filed on the child’s behalf.

Should the judge see the child?

While traditionally rare, this is something that needs to be considered not only at the first directions

hearing but also at subsequent stages, including during the final hearing or even when the decision

has been made.

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In Re G (Abduction: Children’s Objections) [2010] EWCA 1232, [2011] 1 FLR 1645 the Court of Appeal

set aside a return order made in respect of children aged 13 and 9. At first instance the judge had

found that the children objected but exercised his discretion in favour of return. The older child,

described as “an articulate, naturally determined and courageous adolescent” had written the judge

a letter but this had not been mentioned in the judgment, and a meeting with the child had not been

considered. The Court of Appeal (consisting of Thorpe and Smith LJJ) met the child; it was clear that

her position had hardened and she was saying she would not be forced onto the plane.

More recently the Court of Appeal, in Re J (Abduction: Children’s Objections) [2011] EWCA 1448,

[2012] 1 FLR 457, stressed the need for practitioners and judges to have regard to the President’s

Practice Note (Guidelines for Judges Meeting Children Who are Subject to Family Proceedings)

[2010] 2 FLR 1872. The judge should have engaged the children, aged 15, 13 and 10, in the process

and at least have raised the possibility of seeing them; they needed the opportunity to understand

the nature of the proceedings and the judge could have assessed where a return order would lead if

enforcement was resisted. The authority of the judge could also have been an influence for

acceptance.

An interesting recent case is that of C (A Child) [2012] EWCA Civ 1144 in which the order for return

was made by consent, but the judge subsequently had a meeting with the child, who now objected

strenuously; the case was sent to the Court of Appeal as the judge could not set his order aside. The

Court of Appeal urged the parties to find a way forward that would obviate the need for a re-trial.

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The separate representation of the child under the Hague Convention on the Civil Aspects of International Child Abduction

CASE FINDNG

Re J (Abduction: Children's Objections) [2011] EWCA Civ 1448, [2012] 1 FLR 457

The mother failed to return the children (aged 15, 13 and 10 at the time of trial) from England to Poland after an agreed holiday contact and on the father’s application the High Court ordered their return. The mother petitioned for leave to appeal and the children applied for leave to intervene and permission to appeal. The children were allowed to appeal. The Court of Appeal:

Held the judge should have made a clear finding as to whether the children objected to being returned as a finding that their objections had not been out would have required the court to order their return;

Rejected the claim that the trial judge should have joined the children of his own motion. The mother had not raised this at the preliminary stages and had she raised it at trial it would have been dismissed;

However the judge should have met the children face to face of his motion (although the failure to do so would not have succeeded as the only ground of appeal)

There was a ‘flow of authority pointing towards a meeting’: JPC v SLW and SMW (Abduction) [2007] EWHC 1349 (Fam); De L v H [2009] EWHC 3074 (Fam);Re G (Abduction: Children's Objections) [2010] EWCA Civ 1232.

WF v FJ , BF and RF (Abduction: Child’s objections) [2010] EWHC 2909 (Fam), [2011] 1 FLR 1153.

There is a 'lacuna' in the Family Proceedings Rules regarding the powers to permit B to directly instruct her own solicitor. The judge expressed the hope that the Family Procedure Rule Committee would find time to review the matter.

It is preferable that a child should, time and resources permitting, be seen by the CAFCASS High Court team before any decision is taken as to party status.

Re F (abduction: removal outside the jurisdiction) [2008] EWCA Civ 842, [2008] 2 FLR 1649

Notwithstanding the passage of nearly three years it was in the best interests of the children to be returned to Mozambique as the mother’s status in the UK as a failed asylum seeker was precarious;

That in looking to the future, there was no realistic prospect of the children having a settled future residence in the UK

The standard applied to the ‘settlement’ defence appears to be stronger here than as set out in the decision of the House of Lords in Re M that preceded this decision. It may be that this is because this is a non-Convention case.

Re C (Abduction: The eldest child turned 16 during the course of proceedings so the

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Separate Representation of Children) [2008] EWHC 517 (Fam), [2008] 2 FLR 6

Convention on longer applied but the father nonetheless sought the child’s return under the court’s inherent jurisdiction;

Considering Re M the judge held that that given the eldest child could be joined without the need of a guardian the younger children should also be represented;

The proper test for joinder of children as parties in a Hague Convention case was:

‘whether the separate representation of the child will add enough to the court’s understanding of the issues that arise under the Hague Convention to justify the intrusion and the expense and delay that may result’.

This is clearly a case-by-case test, is far wider than hearing a child on consideration of that child’s objections alone, and is formulated in ECHR-compliant language

As to whether the involvement of the children would be an unjustifiable intrusion he concluded that the "very partiality of their position and their parents' positions will cause them harm, not their involvement as parties to the proceedings."

Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 AC 1288, [2008] 1 FLR 251

A directions judge should evaluate whether separate representation would add enough to the Court's understanding of the issues to justify the resultant intrusion, delay and expense which would follow;

However children should not be given an exaggerated impression of the relevance and importance of their views and in the general run of cases party status would not be accorded.

Re F. (Abduction: Joinder of Child as Party) [2007] EWCA Civ 393, [2007] 2 FLR 313

The court rejected the argument Baroness Hale’s argument in Re D (below) had lowered the bar in so far as children’s applications for separate representation were concerned;

The requirement raised by the Brussels II bis Regulation on the court to hear the views of all children of sufficient age and maturity is different to extending them party status;

The fact that Baroness Hale had rejected Thorpe LJ’s suggestion in Re H that the Regulation had in fact raised the bar to joinder did not mean the standard had dropped, but that it remained the same: i.e. to be determined in accordance with the exceptional circumstances test.

Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 FLR 961

Baroness Hale rejected Thorpe LJ’s suggestion in Re H. (below) that the Brussels II bis Regulation had raised the bar in so for as applications for separate representation were concerned;

The ‘exceptional circumstances’ test in Re H still held;

However in light of the new Regulation there needed to be a re-appraisal of the way in which the views of abducted children were to be ascertained.

Re H. (A Child: Child Abduction) [2006] EWCA Civ 1247, [2007] 1 FLR 242

Appeal dismissed and case remitted for judgment;

Only in exceptional circumstances would a child be afforded separate representation in Hague Convention cases;

Reaffirmed Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390

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Nyachowe v. Fielder [2007] EWCA Civ 1129

There a return order was made notwithstanding the strong objections of an independent 12 year old. Particular emphasis was placed on the fact that the girl had come for a 2 week vacation.

Raw v France (Application No.

10131/11)

The ECtHR gave judgment recently in abduction case and considered the issue of the separate representation of the child in Strasbourg. The Opinion of Judge Nussberger is interesting:

“it does not seem justifiable to me to apply this approach [allowing a parent to issue an application on behalf of their child] in cases of removing a child, particularly where the child has explicitly expressed his opinion and he is in disagreement with the parent who is asking to represent him. In theory in such cases the father as much as the mother, each with contradictory positions, could ask to represent the child. Such a situation is neither in the best interests of the child not in the interests of a just and fair Court procedure. [para 6 of her Opinion].