C v M (A Child) (Abduction: Representation of Child Party)
[2023] EWCA Civ 1449
Re D (A Child) (Abduction: Child's Objections: Representation of Child Party)
14 September 2023
[2023] EWCA Civ 1047
Court of Appeal
A child didn't want to go back to Singapore after a visit with his dad. A judge said the dad was manipulating him and sent him back anyway. A higher court said the judge didn't listen properly to the child's lawyer, who was also his guardian, so they sent the case back to be decided again.
Key Facts
- •The case concerns a 1980 Child Abduction Convention application.
- •The child, D (13), was wrongfully retained in England by the father after a court-sanctioned holiday visit.
- •D was joined as a party to the proceedings and represented by a solicitor, Mr. Netto, who was also appointed as his guardian.
- •The judge made a return order to Singapore despite D's objections.
- •The appeal challenges the judge's treatment of Mr. Netto's evidence and his approach to D's welfare.
- •The father's manipulative communication with D was a key consideration.
Legal Principles
Role of a solicitor acting as a child's guardian in 1980 Convention proceedings.
Various case laws including Re M, Re LC, Ciccone v Ritchie.
Admissibility of opinion evidence from a solicitor-guardian.
Civil Evidence Act 1972, s.3(2); Phipson on Evidence.
Weight given to a Gillick-competent child's views in abduction cases.
In re M (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288; AS v CPW [2020] 4 WLR 127.
The court's discretion in considering return orders under the 1980 Convention, considering the child's objections and welfare.
1980 Child Abduction Convention; Family Procedure Rules 2010, Part 16.
Outcomes
The appeal was allowed.
The judge's assessment of Mr. Netto's evidence was flawed due to his incorrect view that Mr. Netto's opinion evidence was inadmissible. This undermined the fairness of the proceedings and the proper determination of the application.
The case was remitted for a rehearing.
The Court of Appeal found it impossible to fairly re-make the decision, and the outcome of a return order was not sufficiently inevitable to avoid a rehearing.