C v M (A Child) (Abduction: Representation of Child Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lady Justice Elisabeth Laing,Lady Justice King |
| Judgment Date | 01 December 2023 |
| Neutral Citation | [2023] EWCA Civ 1449 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001088 |
[2023] EWCA Civ 1449
Lady Justice King
Lord Justice Moylan
and
Lady Justice Elisabeth Laing
Case No: CA-2023-001088
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
MRS JUSTICE THEIS
FD22P00737
Royal Courts of Justice
Strand, London, WC2A 2LL
Ruth Kirby KC, Adele Cameron-Douglas and Miriam Best (instructed by Brethertons LLP) for the Appellant
Mark Jarman KC and Mani Basi (instructed by Dawson Cornwell) for the First Respondent
Christopher Hames KC, Indu Kumar and Charlotte Baker (instructed by Goodman Ray Solicitors) for the Second Respondent
Deirdre Fottrell KC, Lorraine Cavanagh KC, Siobhan F Kelly and Sharon Segal (instructed by ITN Solicitors) for the Association of Lawyers for Children the First Intervener
Henry Setright KC and Harry Langford (instructed by Mills and Reeve LLP) for the Reunite International Child Abduction Centre the Second Intervener
Hearing dates: 25 and 26 July 2023
Approved Judgment
This judgment was handed down remotely at 14.00pm on 1 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The father appeals from the order made by Theis J (“the judge”) on 18 May 2023 dismissing his application for a summary return order under the 1980 Hague Child Abduction Convention (“the 1980 Convention”). This order followed a rehearing of the father's application, a previous order having been set aside by the judge on 4 April 2023.
The father's application under the 1980 Convention sought the return of two children, aged 12 (“X”) and 6 (“Y”), to Mauritius from where they had been wrongfully removed by the mother in October 2022. The application was first determined on 3 February 2023, when the judge made a summary return order. The judge decided that Article 13(b) had not been established and that, while X objected to returning to Mauritius, she would exercise her discretion, for the reasons set out in her judgment, by making a return order. The judgment is reported as: C v M [2023] EWHC 208 (Fam) (“the February 2023 judgment”).
On 15 March 2023, X applied to be joined as a party and to set aside the return order. X was joined as a party and Ms Broadley was appointed to act as her solicitor-guardian. Neither the mother nor the father opposed either of these orders. As referred to above, on 4 April 2023 the judge set aside the summary return order she had made on 3 February 2023. The judgment is reported as: C v M & Another (Hague Abduction: Application for Re-hearing) [2023] EWHC 1482 (Fam) (“the April 2023 judgment”).
The father's application was reheard on 4 and 5 May 2023. At that hearing, the father sought the summary return of both children or, in the alternative, of Y alone. The mother and X opposed the order, relying on X's objections and Article 13(b). It was agreed that X objected to returning to Mauritius. In her judgment, handed down on 18 May 2023, reported as C v M and another [2023] EWHC 1182 (Fam) (“the May 2023 judgment”), the judge set out her reasons for deciding that the father's application should be dismissed in respect of both children. In summary, this was based on the exercise of her discretion arising as a result of X's objections and on her conclusion that Article 13(b) was established in respect of both children.
This appeal was heard at the same time as the appeal in another case which appeared to raise similar issues as to the role of a solicitor-guardian, including as to the proper scope of their evidence, when acting for a child in proceedings under the 1980 Convention. Judgment in respect of the other appeal is reported as: D (A Child), Re (Abduction: Child's Objections: Representation of Child Party) [2023] EWCA Civ 1047 (“ D (A Child)”). As explained in that judgment, at [4], the broad nature of the issues led to Reunite International Child Abduction Centre (“Reunite”) and the Association of Lawyers for Children (“the ALC”) being given permission to intervene by way of written and oral submissions.
As set out in D (A Child), at [69], in response to the issues identified in these appeals, it was proposed that Sir Andrew McFarlane P “should consider setting up a committee” to address and make recommendations in respect of:
“(i) whether r.16.6(1) of the Family Procedure Rules 2010 (“the FPR 2010”) should be extended to apply to proceedings under the 1980 Convention; (ii) the appropriate role in such proceedings of a solicitor appointed also as a child's guardian; and (iii) any other recommendations as to the process which should be adopted in respect of a child being joined as a party to such proceedings.”
It was made clear that this was “suggested wording only and [was] not intended to be prescriptive as to the matters which any such committee might consider it appropriate to address”. It was also explained in that judgment that Reunite's and the ALC's submissions would be dealt with in this judgment.
The father was represented on this appeal by Ms Kirby KC and Ms Cameron-Douglas and by Ms Best (who did not appear below), both of whom appeared at the May 2023 hearing below; the mother was represented by Mr Jarman KC and Mr Basi who, together with their instructing solicitor, acted pro bono at the hearing below and on this appeal; and X, who acts through her solicitor-guardian Ms Broadley, was represented by Mr Hames KC and Ms Baker (the latter of whom appeared at the May 2023 hearing). Reunite was represented by Mr Setright KC and Mr Langford and the ALC by Ms Fottrell KC, Ms Cavanagh KC, Ms Kelly and Ms Segal. I am grateful to all counsel for their respective submissions.
Ms Kirby's oral submissions focused on whether the judge had been entitled to rely on Ms Broadley's evidence. It was submitted that the judge had wrongly relied on her opinion evidence which was inadmissible as she was not an expert. It was also submitted that, in effect, the judge had wrongly “allowed” that evidence “to replace Cafcass”. However, there are five grounds of appeal, which cover a more diffuse range of issues, and which I set out as they appeared in the Skeleton Argument in support of this appeal:
(1) There was a material procedural irregularity when the Judge refused the proposed appellant's application to adjourn the rehearing of his application so that the court could hear from Cafcass and so that Cafcass could comment on a number of issues relevant to the exercise of the court's discretion;
(2) The Judge was wrong to exercise her discretion based on her welfare concerns for the child without further and updating evidence from Cafcass based on an alleged change of circumstances for the child. She was wrong to substitute the expert, objective, child-focused opinion that would have been provided by Cafcass with the opinion evidence of the child's solicitor Janet Broadley, and written hearsay evidence from the child's head teacher;
(3) In exercising her discretion to refuse to order the return of either child to Mauritius, the Judge attributed disproportionate weight to the child's stated objection to a return, an objection that was no different in substance at the re-hearing to the objection the child had expressed in January. The Judge failed to attribute any or any appropriate weight to a number of other material considerations;
(4) The Judge was wrong not to insist that the mother confirm to the court whether, if the court ordered Y's return to Mauritius, the mother would return with one or both children; and wrong to assume the mother would not return in such circumstances;
(5) It was improper, in the exercise of her discretion, for the Judge to take into account the proposed appellant's alleged level of insight into alleged domestic abuse.
Background
The background is dealt with in detail in the judgments below. As summarised in the April 2023 judgment:
“The father was born and brought up in London. Both parents are dual Mauritian and British citizens and the mother was born in Mauritius and came to the United Kingdom in 2000. The parents married in 2003. Both children were born here. The family lived here until 2019. The family went to Mauritius in 2019. There is an issue between the parents as to whether that was en route to Singapore, or for a longer stay in Mauritius. In any event, it is agreed one of the main reasons for the stay in Mauritius was to renew the mother's passport, which could only be done in person. That took longer than expected and events overtook when the travel restrictions were imposed as a result of the COVID-19 pandemic.”
In November 2020, the parents separated while in Mauritius. The mother and the children remained living with the maternal grandparents while the father went to live with his mother. As set out in the February 2023 judgment: “The father continued to have contact with Y, seeing him every weekend … X only participated in indirect video-call contact, which stopped in about November 2021”. Then:
“In June 2022 the father had instigated court procedures in Mauritius to seek contact with X. He made a ‘request to the court’ on 7 June 2022 and on 10 June 2022 both parties attended court-based mediation, where the parties agreed when the father came to the home to collect Y he would see X for up to 30 minutes. According to the father, that arrangement did not work with X and he was in the process of making a formal court application when he received the letter from the mother's English solicitors dated 7 October 2022 stating she had left with the children.”
On 6 October 2022 the mother wrongfully removed the children from Mauritius and brought them to England without any prior notice to the father. They have remained here since then.
Proceedings
The father's proceedings under the 1980 Convention were issued on 15...
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