Re D (A Child) (Abduction: Child's Objections: Representation of Child Party)
[2023] EWCA Civ 1047
C v M (A Child) (Abduction: Representation of Child Party)
1 December 2023
[2023] EWCA Civ 1449
Court of Appeal
A dad tried to get his kids back from their mom who took them to England from Mauritius. A judge said no, mostly because the older child didn't want to go back. The dad appealed, but the higher court agreed with the judge, saying the dad waited too long to complain about the evidence used. The case also brings up important questions about how lawyers who also act as guardians for children in these cases should behave.
Key Facts
- •Father appeals dismissal of summary return order under the 1980 Hague Child Abduction Convention.
- •Mother wrongfully removed two children (aged 12 and 6) from Mauritius to England.
- •12-year-old child (X) was joined as a party and had a solicitor-guardian (Ms. Broadley).
- •Judge initially granted a return order, then set it aside after hearing evidence from X's solicitor-guardian and headteacher.
- •Rehearing dismissed the father's application for both children's return, citing Article 13(b) and X's objections.
- •Appeal challenges the judge's reliance on Ms. Broadley's evidence, case management decisions, and exercise of discretion.
Legal Principles
The court has a wide discretion in Hague Convention cases where a child objects to return, considering Convention policy, child's rights, and welfare.
In re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288
Non-expert opinion evidence is admissible if it conveys relevant facts personally perceived by the witness.
Civil Evidence Act 1972, s.3(2); Civil Evidence Act 1995, s.1
A child may be made a party to proceedings if it's in their best interests, but this is rare in Hague Convention cases. A Cafcass report is typically sufficient.
Family Procedure Rules 2010, Part 16; Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings
The role of a solicitor-guardian in Hague Convention proceedings requires clarification, particularly regarding the admissibility of opinion evidence beyond establishing child competence.
Ciccone v Ritchie (No 1) [2016] 4 WLR 60; various submissions from interveners
Outcomes
Appeal dismissed.
The court found the challenges to the judge's reliance on Ms. Broadley's evidence were raised too late. Ms. Broadley's evidence was admissible and the judge properly exercised her discretion, considering all relevant factors and balancing competing interests.