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The Separate Representation of Children in Child Abduction Proceedings

Esther Lieu, barrister of 3PB Chambers, explores how the role of children has developed Hague Convention child abduction proceedings.


Esther Lieu, barrister, 3PB















Esther Lieu, barrister, 3PB

Introduction

"Children should be heard more frequently in Hague Convention cases than has been the practice hitherto. The only question is how this should be done." 1

This article explores the separate representation of children in cases brought under The Hague Convention on the Civil Aspects of International Child Abduction ('the Convention') and considers whether, in recent judgments, the role of the child has been elevated beyond the confines of the Convention. In conclusion it suggests that the following propositions may be derived from current case law:

The legal framework

The Convention was built on the premise that the wrongful removal or retention of children was harmful to the child, designed to prevent the abducting person from gaining legal or practical advantage in respect of 'rights of access' and has the sole purpose of seeing that children who are abducted from one signatory state to another are returned to the state of the child's 'habitual residence'.

The Convention is summary in nature, engaged to determine jurisdiction rather than welfare and accordingly s.1 Children Act 1989 does not apply (Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27).  In order to function effectively as a precursor to any substantive hearing it anticipates a fast resolution of proceedings2, which has previously been argued precludes any in-depth efforts at engaging the child.

Council Regulation (EC) No 2201/2003 of 27 November 2003 ('the Council Regulation') came into force on 1st March 2005. Article 11(2) of the Council Regulation states that where Articles 12 or 13 of the Convention are engaged (for example where it is argued that the child objects to being returned, or has settled in their new environment) Member States are obliged to ensure that the child is given the opportunity to be heard during the proceedings (unless it appears inappropriate having regard to their age or degree of maturity).

Hearing the child

There are, broadly, three ways in which the court can ensure that the voice of the child in Hague Convention proceedings is heard: their views can be expressed in an interview with a court welfare/ Cafcass officer, and/or they can meet with the judge, and/or they can apply to be separately represented. In respect of meeting with the judge the current view is that where practicable the Judge should meet with all children irrespective of what defence was raised (Re D (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 FLR 961), irrespective of whether they were invited by the parties to meet with the child (Re J (Abduction: Children's Objections) [2011] EWCA Civ 1448, [2012] 1 FLR 457), perhaps in preference to the child's views being obtained through Cafcass (Re G (Abduction: Children's Objections) [2010] EWCA Civ 1232, [2011] 1 FLR 1645). Practitioners are reminded of the need 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 separate representation of the child

a) Threshold criterion
The overriding test for joinder is whether it would be in the best interests of the child to do so (FPR 2010 r. 16.2). This test applies to the grant of party status in family proceedings generally, with no specific provision in respect of proceedings under the Hague Convention; however the Supreme Court has held that the guidance in PD16A, whilst not focused on Convention proceedings, is 'directly apposite' to them (Re LC [2014] UKSC 11, para 50 – 53).

b) Previous authorities & 'exceptional circumstances'
In Re S (Abduction: Children: Separate Representation) [1997] 1 FLR 486, Wall J held that for a child to require separate representation in Hague Proceedings there must be 'exceptional circumstances' – a phrase which received little scrutiny for several years until the Court of Appeal were invited, in light of the increased involvement of children in litigation, to reconsider if not abandon the test (Re H (Abduction) [2006] EWCA Civ 1247, [2007] 1 FLR 242). Thorpe LJ, in rejecting that argument, held that should the grant of party status be revised in either direction, it should be more rather than less stringently applied. He suggested that the bar to separate representation had in fact been raised by the coming into force of the Council Regulation whose six-week time table appeared to render the separate representation of children impossible on account of the resultant delay.

This suggestion was short lived: delivering the lead judgment in Re D (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 FLR 961, Baroness Hale held that the Council Regulation required the court to look at the children's view afresh, and stated that delay could be avoided provided the court considered the joinder of the child at the earliest possible opportunity. The entry into force of the Council Regulation did not necessitate any delay and the bar as to whether a child should be separately represented essentially remained where it was3.

Baroness Hale accepted that in most cases the obligation to hear a child of an appropriate age could be satisfied by a report by a Cafcass officer or a meeting with the judge. However she held that 'whenever it seems likely that 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." (Re D, para 60).

c) The 'Re M' test
Baroness Hale went on to amplify this view in Re M (Children) (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 FLR 251, saying at para 57 that in deciding whether to order that a child be joined as party to the proceedings, the court should consider "whether 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, the expense and the delay that may result".

Whilst this may arguably have been said as obiter dicta, Ryder J picked up and established the 'Re M test' saying "In my judgment, that has set the legal policy behind and the terminology of the test that I should apply. It is neither appropriate nor necessary to re-work the test by looking at the many previous legal authorities that there have been on the question. The decision of the House of Lords is, if I may say so, clear and binding on this court." (Re C (Abduction: Separate Representation of Children) [2008] EWHC 517 (Fam) [2008] 2 FLR 6, para 14).

'Whether it will add enough to the court's understanding of the issues under the Hague Convention…'

In the bitterly protracted case of Cambra v Jones [2013] EWHC 88 (Fam) the mother fled from Spain to England with the parties' five children, three of whom eventually returned to Spain but the others remaining subject to the father's application under the Convention for their return. Mrs Justice Theis DBE considered the 'highly unusual' circumstances where despite being 'fundamentally let down' by their mother's failure to comply with return orders (which had fractured the children's relationships with their siblings), the children were so vehemently opposed to being returned to their father that their resistance to any suggestion of return was deemed 'exceptional' by the Cafcass officer. The judge, being persuaded by the recommendation of Cafcass that the children be joined and the children's respective ages (13 and 15), joined them as parties on the basis that neither parent could adequately represent the children's views.

In Re LC (Children) [2014] UKSC 1 the question as to where the eldest child was habitually resident at the relevant time arose, determination of which was necessary in advance of any determination under the Convention. The Supreme Court held that the child's state of mind at the relevant time was significant, and that as this was not evidence that could easily be given by either parent she should have been granted party status (and the Court of Appeal should have allowed her appeal against the refusal of it). The Court hastened to add however that this was not to suggest that it should become routine to join as parties to Convention proceedings children whose habitual residence in the requesting state is in issue, (para 49).

'… to justify the intrusion, the expense and the delay'

The Supreme Court in Re LC expressed concern 'that the intrusion of children into the forensic arena, which enables a number of them to adopt a directly confrontational stance towards the applicant parent, can prove very damaging to family relationships' (para 48).  Whilst it is right that the impact on the child of granting them party status must be considered, the courts have recognized that 'it is the child, more than anyone else, who will have to live with what the court decides' (Re D, para 57). Moreover, as observed by Ryder J, "the very partiality of their position and their parents' positions will cause them harm, not their involvement as parties to the proceedings." Re C (Abduction: Separate Representation of Children) [2008] EWHC 517 (Fam), [2008] 2 FLR 6 (para 46).

In certain circumstances, proceedings will already have been considerably delayed. In Re D, where there was a delay of four years between proceedings being commenced and the House of Lords' ruling, it was observed that although it may not have been appropriate to hear the child's views initially, once the proceedings were prolonged (beyond several years) and the child had reached an age of sufficient age and maturity, 'it could scarcely by then have been said that seeking his views, or allowing his legal participation, would add to the already inordinate delay' and consideration should have been given to his separate representation in proceedings (Re D, para 62).

In the case of Re M the delay of two years between the mother's unlawful removal of the children from Zimbabwe to England and the commencement of proceedings was such that the avoidance of delay was no longer an achievable Convention principle. The court found that the child had settled in her new environment (pursuant to Article 12 of the Convention) and held that in such 'settlement cases' "the separate point of view of the children is particularly important and should not be lost in the competing claims of the adults." (para 57). The competing factor of delay was in this case no longer relevant (para 47), and could in the future be mitigated by the separate representation of children in settlement cases becoming 'routine'.

Discussion

There is a far greater acknowledgment of the need not just to hear children, but to listen to them, and in listening to them, the courts are increasingly alive to the complexity in enabling a child to express themselves in a manner that is accurately understood. Coupled with the prevalence of social media enabling a child to maintain social and familial links that may result in the child holding a standpoint distinct from either parent, it would not be surprising if there were an increasing number of children separately represented in Hague proceedings. The test for joinder, namely whether it would be in the child's best interests to do so, sits comfortably with the 'Re M test', and is compatible with the policy and purpose of the Convention, and the six- week timetable may even be achievable through careful case management (the court may for example decide at an early stage to confine the child's participation to the adduction of a witness statement). It is difficult to envisage circumstances where a determination of the court reached without proper consideration of the position of a child of sufficient age and maturity can be a decision that safeguards the child's best interests and procedural rights.
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Footnotes:
[1] Re D [2006] UKHL 51, [2007] 1 FLR 961, Baroness Hale at para 59.
[2] Article 11 of the Convention holds that if the judicial or administrative authority has not reached a decision within six weeks of commencement of proceedings then the applicant has the right to ask for the reasons for the delay.
[3] As confirmed by the Court of Appeal in Re F [2007] EWCA Civ 393).

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