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Re D (A Child) [2006] EWCA Civ 760

Application for leave for child to intervene at appellate stage of abduction proceedings refused

Court of Appeal: Thorpe LJ (18 May 2006)

Application for leave for child to intervene at appellate stage of abduction proceedings refused.

In abduction proceedings, a mother had unsuccessfully relied on two defences: (1) she asserted that the original removal from Romania was not unlawful; and (2) she asserted an Article 13(b) defence. In her notice of appeal, for a hearing fixed for the following week, she only challenged the judge's finding on the first defence.

An application for leave to intervene was brought on behalf of the seven-year-old child involved in the case. The court observed that the main part of the mother's Article 13(b) defence in the court below had been the disruption to the child if a return order were made, and there was not a huge distinction between the mother's case and the case in support of the present application.

Held, refusing the application, that there was a valid distinction to be drawn between allowing the views of a seven-year-old child to be put to the court and allowing elaborate argument to be put to the court on his behalf.

The court acknowledged that this was a rare application, and that the discretion to be exercised in this difficult case was finely balanced. The court took account of the fact that there were already two leading counsel involved in the case, and that the interests of fairness also included fairness to the respondent in the proceedings.

Accordingly, the court, in exercising its discretion, took the unusual step of asking a CAFCASS officer to meet the child and submit a brief report on his views so that he would at least have the reassurance that his views were before the appellate court. The mother's solicitors were advised to consider whether it would be appropriate for the existing notice of appeal and skeleton argument to be enlarged to enable the alternative and wider review to be put before the court.

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