Court of Appeal Affirms Judicial Discretion in Hague Child Abduction Case with Emphasis on Representing Children's Voices

Citation: [2023] EWCA Civ 1449
Judgment on


In the case of C v M (A Child) (Abduction: Representation of Child Party), the Court of Appeal dealt with an appeal concerning the Hague Child Abduction Convention and the appropriate representation of a child within such proceedings. The case focused on key legal principles surrounding children’s participation in proceedings, the admissibility and weight of evidence provided by a solicitor-guardian, and the discretionary power of the court in matters of child abduction.

Key Facts

The matter revolved around an application under the 1980 Hague Child Abduction Convention requesting the return of two children wrongfully removed from Mauritius by their mother. The father’s application initially resulted in a summary return order, which was later contested by the elder child (X), leading to the child being joined as a party via a solicitor-guardian, resulting in the order’s setting aside. A subsequent rehearing dismissed the father’s application, prompting the appeal.

Child’s Objection and Judicial Discretion

One of the central issues was the proper weight and consideration of a child’s objections to being returned under Article 13 of the Convention. The court reaffirmed that it possesses a broad discretion, as articulated in Re M and another (Children) (Abduction: Rights of Custody), to consider the child’s age, degree of maturity, authenticity of objections, and alignment with the child’s welfare and rights.

Admissibility and Role of Solicitor-Guardian

The judgment clarified the admissibility of non-expert opinion evidence and set out the permissible scope of evidence that a solicitor-guardian can provide, which should not exceed their role unless explicitly permitted by the court. In the instance where a solicitor-guardian’s opinion evidence is admissible, as in this case, objections to its relevancy and weight must be made at the lower court level, and challenges cannot be introduced for the first time on appeal.

Case Management Decisions

The Court of Appeal addressed the trial judge’s case management discretion, particularly denying an adjournment request and deciding against acquiring an updated report from Cafcass. The appellate court reinforced the judge’s authority in crafting case management decisions, underscoring the necessity for timely and effective adjudication in abduction cases under the 1980 Convention.

Role of Cafcass and Potential Conflict

The case highlighted the potential conflict in a solicitor performing the dual role of legal advocate and independent guardian for the child. The need for clarity in defining the role of a solicitor-guardian was evident, as were calls for guidelines that could prevent such conflicts and ensure the child’s interests are appropriately represented.


The Court of Appeal dismissed the father’s appeal, upholding the findings of the lower court. There was no merit in the challenges to the trial judge’s decisions related to evidentiary weight and case management. The court called for further consideration by the Family Procedure Rules Committee or a committee appointed by the President of the Family Division to address the role and representation of children in these proceedings, marking the path towards more structured guidance in this area.


The Court of Appeal’s decision in C v M (A Child) (Abduction: Representation of Child Party) confirms robust principles of judicial discretion in child abduction cases and underscores the nuanced role of a solicitor-guardian in representing children. The judgment also anticipates the development of comprehensive guidance to navigate the complexities of dual representation while respecting the child’s voice and rights in international family law proceedings. This case sets the precedential understanding for similar cases and prompts upcoming regulatory advancements for child representation in family law.