N (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder |
| Judgment Date | 13 August 2015 |
| Neutral Citation | [2015] EWCA Civ 1076 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2015/2485 |
| Date | 13 August 2015 |
[2015] EWCA Civ 1076
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Jackson
Lord Justice Ryder
Lord Justice Bean
B4/2015/2485
Mr N Anderson (instructed by Foort Taylor) appeared on behalf of the Father
Ms J Renton (instructed by Bindmans) appeared on behalf of the Respondent
Miss M Chaudhry (instructed by Dawson Cornwell) appeared on behalf of the Children
This is the judgment of the court, to which all members of the court have contributed.
These are Hague Convention proceedings concerning four children who are aged between 13 and eight years. The allegation is the children have been wrongfully retained in this jurisdiction since 23 January by their father and that prior to that date, the children had lived for the whole of their lives with their mother as their "primary carer". On 2 July 2015 his Honour Judge Bellamy, sitting as a judge of the High Court, heard the application for summary return to Australia, where they have lived with their mother, and granted it. This is the father's appeal against that order.
For reasons that are not adequately addressed, neither of the parents nor the court below considered whether the young people involved to whom this process relates should have been made parties to these proceedings. The children were not represented in the court below. On 21 July 2015, they approached specialist international family solicitors Messrs Dawson Cornwell, who arranged for their representation. Subsequently, the two elder children have applied to this court to be joined as parties to their father's appeal and/or for permission themselves to pursue an appeal against the order made by Judge Bellamy. They have asked for disclosure of the documents from the court below and this court, which has to date been refused.
And so they appear this morning through their solicitors and counsel Miss Chaudhry to make the applications before this court, but of course with one hand tied behind their back. Evidence filed in support of their application sets out the fact that each of the children wishes to live in England with their father, and that they "object" to a return to Australia. The eldest young man is on any basis of an age and understanding to give instructions to his solicitor without the need for a litigation friend and his immediate younger sister joins him in that regard. Their solicitors regard both of them as "Gillick competent children".
On a prima facie basis, if we ask ourselves the question whether separate representation of the children would add enough to the court's understanding of the issues to justify the intrusion, expense and delay that might result, this court would unequivocally say yes. That of course identifies the question formulated by Baroness Hale in Re M (children) (Abduction; Rights of Custody) [2007] UKHL 55 [2007] 3 WLR 975 as the case management...
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