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“Nowadays not all law can be simple law; but the best law remains simple law”

Christopher Hames and Dorothea Gartland, of 4 Paper Buildings, & Nina Hansen, a partner of Freemans Solicitors, consider the important Court of Appeal judgment in Re M (Republic of Ireland) (Children’s Objection) (Joinder of Children as Parties).

Christopher Hames, barrister, 4 Paper BuildingsDorothea Gartland, barrister, 4 Paper BuildingsNina Hansen, partner, Freemans Solicitors

Christopher Hames and Dorothea Gartland, both of 4 Paper Buildings, and Nina Hansen, partner of Freemans Solicitors

The title of this article is derived from the words of Wilson LJ as he then was at §53 of his judgment in P-J (Children) [2009] EWCA Civ 588 [2010] 1 WLR 1237] and was cited by Black LJ with approval in her judgment (at §13) in Re M (Republic of Ireland) (Children's Objection) (Joinder of Children as Parties) [2015] EWCA Civ 26.

The  decision from the Court of Appeal in Re M looks afresh at the child's objections defence under Article 13 of the Hague Convention 1980 and gives clear guidance on how to approach this in all cases at first instance.

From now on consideration of a child's objections defence is definitively the straightforward two part approach: 1) a gateway test in respect of objections and then 2) the exercise of the court's discretion, taking into account the relevant factors in each case.

The facts of the appeal
Four children were taken by their mother from the Republic of Ireland to England without their father's consent in May 2014. The father issued Hague proceedings for the summary return of the three youngest children. At first instance no application was made for any of the children to be joined. The mother's defence was put forward under Article 13(b) on the basis of a grave risk of harm to her if return was ordered and / or in the alternative on the basis of the children's objections.

The judge ordered the children's return on the basis that neither defence had been made out. The two eldest children (aged 16 and 12) then sought permission to bring an appeal against this decision and were given permission to do so by Black LJ. The substantive appeal hearing was in November 2014.

At the appeal the Court was dealing with two issues: 1) the substantive challenge to Mrs Justice Roberts' return order; and 2) the procedural question relating to joinder of children as parties for the first time in the Court of Appeal.

Black LJ gives the judgment of the Court which also comprised Richards and Ryder LJJ. The appeal against the return order was successful. What follows is an all-encompassing judgment considering the law over the last two decades in relation to the issue of a child's objections under the Convention. The judgment is here.

The second part of the judgment deals with the issue of joinder of children as parties at the appeal stage of proceedings. This is a matter that last year the Court of Appeal, comprising Black, Richards and Vos LJJ, in Re H (Jurisdiction) [2014] EWCA Civ 1101  explained it wished to address in an appropriate case (see §11-§14 of that judgment).

The traditional approach to the child's objections exception
Black LJ explains that traditionally the approach in England and Wales is to break the matter of objections down into two stages: the "gateway stage" and the discretion stage. If a judge finds a) the child objects to being returned, and b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views, then the gateway stage is passed. The court then moves on to consider different factors in weighing up how to exercise its discretion.

Having carefully considered the views of the House of Lords in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 and in Re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55,Black LJ explains that it is now settled law that since Re M once a ground for opposition to return has been made out, the court moves onto the discretion stage and that there is no requirement that a case be "exceptional" (cf §40 Re M). Once objections are established, the discretion stage that follows is at large for the judge.

In respect of the gateway stage Black LJ explains that the following matters are now firmly established:

i. Whether a child objects to being returned is a matter of fact.

ii. There is no fixed age below which a child's objections will not be taken into account.

iii. A child's views have to amount to objections (preferences are not objections and 'preferences' are a useful way of summarising views falling short of objections).

iv. The objection has to be to returning to the country of habitual residence.

v. Objections themselves are not determinative.

The Re T approach is unhelpful
Black LJ expressly disapproves of the Court of Appeal's alternative approach to consideration of a child's objections as set out in Re T [2000] 2 FLR 192 (and more recently in Re K [2010] EWCA Civ 1546). This approach is described by her as a 'highly technical, structured, approach'. The appendix to this judgment sets out the approach in Re T and a link is provided to the appendix here.

The judgment of Wilson LJ (as he then was) in Re W [2010] EWCA Civ 520 is cited as supporting the simpler approach to objections and §22 of the judgment is cited in full with Black LJ concluding "that Wilson LJ was, at the very least, distancing himself from the Re T approach."

How the court should approach the child's objections exception in practice from now on
Black LJ states at §76:

"The starting point is the wording of Article 13 which requires, as the authorities which I would choose to follow confirm, a determination of whether the child objects, whether he or she has attained an age and degree of maturity at which it is appropriate to take account of his or her views, and what order should be made in all the circumstances."

The Court emphasises that an over-intellectualised or overly prescriptive approach when giving consideration to the "gateway stage" in a child's objections case is being discouraged. Four short examples of how to approach the gateway stage are given which envisage the relevant child's objections not being established:

i. Where it is established that a child is merely parroting the views of a parent and does not personally object at all;

ii. Where because of age or stage of development, the child does not have the level of understanding looked for before reaching a conclusion that the child has a degree of maturity appropriate to take account of his/ her views;

iii. Where the objection may not be an objection to the right thing;

iv. Where the objection may not be an objection at all, rather a wish or a preference.

The case at first instance had proceeded with what Black LJ describes as a "careful exploration in cross-examination of whether the children's objections were the product of influence or manipulation by the mother". The judge at first instance did not find this to be so.

The principal error in the first instance judgment was in ascribing the views of the children to a return as preferences rather than objections given the circumstances in which they had communicated their views to the Cafcass officer.  The appeal court found that the children in this case were clearly objecting to a return and were of an age where their views should be taken into account.

Black LJ explains that this was a case in which the children's objections to return were inextricably linked with their strong feelings about their father. The judge at first instance had found that the protective measures available to the children and mother in Ireland would be sufficient. Black LJ disagreed with this in particular, having regard to the second appellant child in the proceedings and his visceral fear of his father. In Black LJ's view the protective measures available "might well not address the children's fears quickly enough or at all." (§123).

In summary, Black LJ concluded that the first instance judge had not given sufficient weight to the children's feelings (which were clearly objections), about a return to Ireland in a case where those feelings 'weigh heavily' against a return when going on to exercise judicial discretion. The youngest child in the proceedings, I, was only 6 years old and Black LJ does not determine her position in the context of her objections but instead does so on the basis that if none of her brothers are returning then to force her to do so would place her in an intolerable situation (§137).

The joinder of children as parties to an appeal
This case was unusual in that the issue of the children's joinder was not considered at first instance at all. It was only at the appeal stage that the two eldest children made the application to appeal against the return order for the three youngest siblings before Black LJ.

The Court of Appeal emphasises that as a result of this decision, practitioners should not expect "that an application for children to be involved in proceedings, either as appellants or respondents, for the first time in the Court of Appeal will be received sympathetically."  (§156).

At first instance rule 12.3(1) of the FPR 2010 applies, and in Hague proceedings this can include: "any other person who appears to the court to have sufficient interest in the welfare of the child." The Court did not determine whether or not rule 16.2(1) FPR 2010  (which provides: "The court may make a child a party to proceedings if it considers it is in the best interests of the child to do so.") applies only to the joinder of children who are the subject of proceedings, and so it falls to be dealt with on another day.

In respect of a party seeking permission to appeal when they were not a party to the proceedings below pursuant to CPR 52.1(3)(d) the case of George Wimpey Ltd v Tewkesbury Borough Council  [2008] 1 WLR 1649, as referred to by Lord Wilson at §11 of In the matter of LC [2014] UKSC 1 [2014] AC 1038 (Re LC), is cited here with approval.

However as Black LJ explains, in Re LC  in the Supreme Court and in Re D in the House of Lords, Lord Wilson and Baroness Hale dealt with the participation of children as parties to abduction proceedings at first instance. This case therefore is the first time the Court of Appeal has expressly considered the issue of joinder of children at an appeal stage under the CPR 1998 (as the FPR 2010 do not apply).

Whereas rule 16.2 of the FPR is based on a best interests test in order to determine whether or not a child should be made a party to proceedings, Black LJ explains that there is no equivalent provision in the CPR and suggests therefore that, whilst not strictly applicable, regard can be had to Practice Direction 16A of the FPR  and the analysis of it offered by Lord Wilson on Re LC  at §§50 onwards is adopted in full, thereby ensuring best interest considerations are included in any decision concerning a child's party status at the appellate stage.

The other key difference between the FPR and CPR is that there is no equivalent provision under the CPR for the court to require or permit a guardian to be appointed for a child. The Court's view is that in general practice in this type of case, the appointment of a litigation friend for a child should provide adequate protection under CPR 21.

The key difference between representation of a child via a litigation friend rather than by a guardian is that the litigation friend cannot provide a welfare assessment. However as Black LJ concludes the judgment, giving an opinion with which we agree, in the vast majority of cases, the appointment of a litigation friend (many of whom are amongst the most experienced solicitors at this type of work) will adequately protect and meet the child's interests on appeal as happened on appeal in this case.