CASE

No full text available

Case Name

Re H. (A Child: Child Abduction) [2006] EWCA Civ 1247

INCADAT reference

HC/E/UKe 881

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

Court of Appeal

Level

Appellate Court

Judge(s)
Thorpe & Wall L.JJ.

States involved

Requesting State

SOUTH AFRICA

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

20 July 2006

Status

-

Grounds

Objections of the Child to a Return - Art. 13(2)

Order

-

HC article(s) Considered

13(2)

HC article(s) Relied Upon

13(2)

Other provisions

-

Authorities | Cases referred to
Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT : HC/E/UKe 56]; Re H.B. (Abduction: Children's Objections) (No. 2) [1998] 1 FLR 564 [INCADAT: HC/E/UKe 168]; Re J. (Children) (Abduction: Child's Objections to Return) [2004] EWCA CIV 428, [2004] All ER (D) 72 (Apr) [INCADAT: HC/E/UKe 579].
Published in

-

INCADAT comment

Exceptions to Return

Child's Objection
Separate Representation

SUMMARY

Summary available in EN | FR

Facts

The application related to a girl, aged 15. The parents were divorced and since 2002 the girl had lived in South Africa with her mother. She spent alternative vacations with her father, who since 2000 had resided in England. During Easter 2006 the girl travelled to England but she refused to return at the end of the stay. The mother then issued return proceedings.

Prior to the trial of the return application the girl applied to be joined as a party to the proceedings. On 9 June this application was dismissed. On 5 July the girl was granted leave to appeal.

Ruling

Appeal dismissed and case remitted to High Court (Family Division) for judgment; only in exceptional cases would a child be afforded separate representation in Convention cases.

Grounds

Objections of the Child to a Return - Art. 13(2)

The judge at first instance accepted it was imperative that the girl’s views be fully considered and her voice clearly heard at the trial, the question was how this objective was to be achieved. Having reviewed existing English authorities on separate representation he concluded that there had to be compelling grounds for such a course of action; he ruled that there were no such grounds in the present case. On appeal it was argued for the girl that the judge at first instance had erred in his exercise of discretion for the wrongful retention was child inspired. Secondly it was submitted that the existing exceptional circumstances test should be abandoned, given the greater freedom now attributed in private law proceedings to the participation of children. These grounds were both rejected. The Court noted that there were material differences between the question of separate representation for a child in a substantive welfare enquiry and in child abduction proceedings which were to be summary in nature. The existing authorities were therefore to be upheld. Wall LJ asked if the girl required separate representation for her voice properly to be heard. In considering this issue he noted that she did not wish to be in court, simply to ensure that he reasons for not wanting to return were fully before the judge. Wall LJ noted that the only mildly unusual feature of the case was the girl’s age, but he held that this did not go to the question of her representation, but to the likely merit of her defence. In all the circumstances the Court concluded that separate representation was not required. Thorpe LJ further suggested that, if anything, the test for party status should be made more restrictive as part of a streamlining of procedures to ensure adherence to the deadlines pertaining to intra-European child abduction cases under the Brussels II bis Regulation.

INCADAT comment

Subsequent Developments
On dismissal of the appeal the case was remitted to the High Court for determination of the Convention application. However, the parties were able to reach an agreement whereby the girl was allowed to remain in England.

Separate Representation

There is a lack of uniformity in English speaking jurisdictions with regard to separate representation for children.

United Kingdom - England & Wales
An early appellate judgment established that in keeping with the summary nature of Convention proceedings, separate representation should only be allowed in exceptional circumstances.

Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKe 56].

Reaffirmed by:

Re H. (A Child: Child Abduction) [2006] EWCA Civ 1247, [2007] 1 FLR 242 [INCADAT cite: HC/E/UKe 881];

Re F. (Abduction: Joinder of Child as Party) [2007] EWCA Civ 393, [2007] 2 FLR 313, [INCADAT cite: HC/E/UKe 905].

The exceptional circumstances standard has been established in several cases, see:

Re M. (A Minor) (Abduction: Child's Objections) [1994] 2 FLR 126 [INCADAT cite: HC/E/UKe 57];

Re S. (Abduction: Children: Separate Representation) [1997] 1 FLR 486 [INCADAT cite: HC/E/UKe 180];

Re H.B. (Abduction: Children's Objections) (No. 2) [1998] 1 FLR 564 [INCADAT cite: HC/E/UKe 168];

Re J. (Abduction: Child's Objections to Return) [2004] EWCA CIV 428, [2004] 2 FLR 64 [INCADAT cite: HC/E/UKe 579];

Vigreux v. Michel [2006] EWCA Civ 630, [2006] 2 FLR 1180 [INCADAT cite: HC/E/UKe 829];

Nyachowe v. Fielder [2007] EWCA Civ 1129, [INCADAT cite: HC/E/UKe 964].

In Re H. (A Child) [2006] EWCA Civ 1247, [2007] 1 FLR 242, [INCADAT cite: HC/E/UKe 881] it was suggested by Thorpe L.J. that the bar had been raised by the Brussels II a Regulation insofar as applications for party status were concerned.

This suggestion was rejected by Baroness Hale in:

Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 A.C. 619  [INCADAT cite: HC/E/UKe 880]. Without departing from the exceptional circumstances test, she signalled the need, in the light of the new Community child abduction regime, for a re-appraisal of the way in which the views of abducted children were to be ascertained. In particular she argued for views to be sought at the outset of proceedings to avoid delays.

In Re F. (Abduction: Joinder of Child as Party) [2007] EWCA Civ 393, [2007] 2 FLR 313, [INCADAT cite: HC/E/UKe 905] Thorpe L.J. acknowledged that the bar had not been raised in applications for party status.  He rejected the suggestion that the bar had been lowered by the House of Lords in Re D.

However, in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937] Baroness Hale again intervened in the debate and affirmed that 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.  This would suggest a more flexible test, however, she also added that 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.

Australia
Australia's supreme jurisdiction sought to break from an exceptional circumstances test in De L. v. Director General, New South Wales Department of Community Services and Another, (1996) 20 Fam LR 390 [INCADAT cite: HC/E/AU 93].

However, the test was reinstated by the legislator in the Family Law Amendment Act 2000, see: Family Law Act 1975, s. 68L.

See:
State Central Authority & Quang [2009] FamCA 1038, [INCADAT cite: HC/E/AU 1106].

France
Children heard under Art 13(2) can be assisted by a lawyer (art 338-5 NCPC and art 388-1 Code Civil - the latter article specifies however that children so assisted are not conferred the status of a party to the proceedings), see:

Cass Civ 1ère 17 Octobre 2007, [INCADAT cite: HC/E/FR 946];

Cass. Civ 1ère 14/02/2006, [INCADAT cite: HC/E/FR 853].

In Scotland & New Zealand there has been a much greater willingness to allow children separate representation, see for example:

United Kingdom - Scotland
C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962];

M. Petitioner 2005 SLT 2 [INCADAT cite: HC/E/UKs 804];

W. v. W. 2003 SLT 1253 [INCADAT cite: HC/E/UKs 508];

New Zealand
K.S v.L.S [2003] 3 NZLR 837 [INCADAT cite: HC/E/NZ 770];

B. v. C., 24 December 2001, High Court at Christchurch (New Zealand) [INCADAT cite: HC/E/NZ 532].