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O (A Child) [2012] EWCA Civ 1576

Appeal of grant of leave to remove to Ireland – consideration of whether the child, aged 9, should be joined as a party in the appeal, or whether her updated wishes and feelings should be sought and reported on by the Cafcass High Court team.

The father appealed from the order of HHJ Cryan, granting the mother permission to relocate to Ireland with the parties' child, H, aged 9. Permission to appeal had been granted by McFarlane LJ on the basis that the child's wishes and feelings had not recently been obtained by the time of the final hearing of the case in front of HHJ Cryan.

Within the appeal, both parties agreed that H's present wishes and feelings should be sought prior to the Court of Appeal determining the appeal.

The father invited the Court to do this by way of joining H as a party to the proceedings. He suggested that an experienced solicitor acting for H should determine if she was Gillick competent and, if so, act directly for her, and if not, for a r16.4 Guardian to be appointed for her. The mother's position was that all that was required was for H to be seen by a Cafcass officer who would report to the Court. Counsel for the mother referred the Court to FPR 2010 PD 16A, paragraphs 7.1 and 7.2 which stipulate that the court should hold back from joining the child unless there was an "issue of significant difficulty". On behalf of the father it was suggested that this was indeed such a case and what was required was for H to have a solicitor who could take her through the options available, give her legal advice if necessary and advocate for her in a more comprehensive and sophisticated process than that involved in the compilation of a Cafcass report.

McFarlane LJ held that although there was merit in the submissions made on behalf of the father, it was not proportionate in this case to join H as a party. It was sufficient for her views to be obtained by a member of the Cafcass High Court team and furthermore, H was not asking to be made a party. McFarlane LJ commented that should H be joined in this case it would involve children being joined in every appeal which had an element of complexity.

The application for H to be joined was therefore refused and the timetable set for the substantive hearing of the appeal.

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers

Case No: B4/2012/2400
Neutral Citation Number: [2012] EWCA Civ 1576


Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday, 1 November 2012

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Mr Teertha Gupta QC and Miss Poonam Bhari (instructed by Bottrill & Co Solicitors) appeared on behalf of the Appellant father.
Mr Tosin Oguntayo (instructed by J M Charles & Co) appeared on behalf of the Respondent mother.
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(As Approved)

Crown Copyright ©

Lord Justice McFarlane:
1. This is a directions hearing in relation to a matter that I heard on 18 October in which I gave permission to a father to appeal the determination of His Honour Judge Cryan made on 28 August 2012 giving permission to the mother of a young girl, H, who was born on 7 February 2003 and therefore now approaching her tenth birthday, to move to live in Southern Ireland.

2. Part of the reasoning that persuaded me to grant permission to appeal was that, as a result possibly of the extended and unusual course of the proceedings in the lower court, the wishes and feelings of H by the time the judge made his order in August 2012 had not been recently obtained.  The only information from an independent source as to her wishes and feelings came from a Cafcass report prepared by the local Cafcass office following a meeting with H the previous November.

3. It is now accepted by both parties that H's wishes and feelings as they currently are should be sought so that the Court of Appeal when it determines this matter in three or four weeks time is appraised of her current position.

4. The application before me this morning relates to the mechanism by which that should be achieved.  The father submits that this is a case that justifies H being joined as a party to the proceedings; that she should be introduced to an experienced child solicitor who is well used to acting for young people in similar circumstances; that solicitor should form a view as to whether H is Gillick competent and, if she is, the solicitor should act for her, not only furnishing the Court of Appeal with an account of H's wishes and feelings, but advocating H's perspective on the case before the court in due course.

5. Alternatively, if that solicitor concludes that H is not Gillick competent, then the case should be transferred to the Cafcass High Court team with a member of the Cafcass High Court team being appointed as H's Rule 16.4 guardian and a lawyer from Cafcass Legal acting as her advocate in the proceedings.  So the model put forward on behalf of the father is for full party status with an advocate in the courtroom acting on H's independent part at the hearing.

6.  The mother's position is that, as I have indicated, she accepts that it is right for H to be seen again by an independent professional, but that that should be  undertaken by an officer of Cafcass.  It is accepted that if the court takes the view that that is better achieved and more efficiently achieved by using the High Court team based in this building, then that is an acceptable way forward.  But Mr Oguntayo, counsel for the mother, argues that it is not necessary or proportionate or justified for H now to be joined as a party and that all that the Court of Appeal needs is a Cafcass exercise undertaken in the current time period.

7. Mr Oguntayo refers to the Practice Direction which now sits within the Family Procedure Rules as PD 16A and he refers in particular to paragraphs 7.1 and 7.2.  The guidance garnered from that pair of paragraphs is that the court should hold back from making a child a party in proceedings unless there is "an issue of significant difficulty" and paragraph 7.2 lists the sort of cases, not exhaustively but by illustration, that would justify that step.

8. Mr Gupta QC, on behalf of the father, strenuously argues that this is such a case; that H has an independent view, that it was a view that differed from that of her mother that favoured staying in this jurisdiction and that she has a right to have that view advocated on her behalf; that the process of engaging H by instructing a solicitor who will sit with her and give her a perspective on the options for her life presented by the proposal of the father and the proposal of the mother, Ireland or not, would be a much more comprehensive and sophisticated process and that the solicitor would then distil what H has to say into a statement and would give her legal advice if that is justified and would advocate for her.

9. Plainly, there is attraction in what Mr Gupta describes.  It is a state of affairs which many cases would benefit from and many children would benefit from, particularly those of an age around which H's current age puts her.  But the courts do not approach these matters by deploying what might be regarded as the Rolls Royce provision in every case. There is a need to look proportionately at the matter and see whether just such a provision is justified in this case.

10.  It is absolutely plain that H's wishes and feelings need to be before the court and need to be obtained by a skilled professional such as the members of the Cafcass High Court team to meet the deficit which arguably I considered gave merit to the proposed appeal.  But there is nothing in what I understand of the case or in what Mr Gupta has submitted to me this morning which takes H's position beyond that.  She is not a young person    and it would be odd if she were at her age    who is positively asking to become a party in the proceedings or feels left out of the proceedings and, on the limited information we have about the exercise conducted last year, she felt pressured and confused by being asked to express a view one way or the other.

11. The way forward, in my opinion, is that the Cafcass High Court team should now be instructed to undertake a wishes and feelings exercise with H.  Both parties if possible by agreement, but if not by one side of A4 each, should furnish the Cafcass High Court team with a resume of what the options would be for H's living arrangements were she to either remain in England and Wales or go to live in Ireland.  And what the contact arrangements would be that would flow from either of those two options, so that the discussion that that professional has with H is conducted on an informed basis.

12. It remains entirely open and possible for the Cafcass High Court team to form their own view that H requires separate representation.  That would bring the case within one of the categories adumbrated in paragraph 17.2 of the Practice Direction.  But on the information before me today, there is nothing that brings H's circumstances up to the level of this case presenting one of significant difficulty requiring her to be represented.

13. Of course, it is a case with some complexity and of course I have given permission to appeal, but those basic circumstances would, as Mr Gupta accepts, justified drawing the child in as a party in every single such appeal.

14. That is not this case and I, therefore, refuse the application to join H as a party, but I do direct that a wishes and feelings report be obtained by the High Court team.  They have having been furnished with basic information from the parties as I have described.

15. I sanction an order with a timetable on the lines that we have between us I think discussed and agreed and the order is to make plain this appeal is to be determined before the end of the current legal term.

Order: Application refused