Re C (Abduction: Seperate representation of children)

JurisdictionEngland & Wales
CourtFamily Division
JudgeMR JUSTICE RYDER,Mr Justice Ryder
Judgment Date14 March 2008
Neutral Citation[2008] EWHC 517 (Fam)
Date14 March 2008
Docket NumberCase No: FD008P00224

[2008] EWHC 517 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Ryder

Case No: FD008P00224

Between:
C
Plaintiff
and
C
Defendant
and
Cc & Ors (Children)
Intervening

Mr David Williams (instructed by Davies, Gore Lomax) for the Plaintiff

Mr Teertha Gupta (instructed by Freemans) for the Defendant

Mr Edward Devereux (instructed by Dawson Cornwall) for the Intervenors

Hearing dates: 27 th February, 7 th March and 14 th March 2008

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic

MR JUSTICE RYDER

This judgment is being handed down in private on 14 th March 2008. It consists of 49 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported in an anonymised form.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mr Justice Ryder

The Application:

1

This is an application by four children to be joined as parties to Hague Convention and inherent jurisdiction proceedings which have been instigated by their father by an Originating Summons issued on 5 th February 2008. Their father's application followed their mother's removal of them from France to the jurisdiction of England and Wales on 30 th December 2007.

2

The Plaintiff, M M C, is the children's father and he is represented by Mr David Williams. The Defendant, S E C, is their mother and she is represented by Mr Teertha Gupta. The children are separately represented for the purpose of this hearing by their solicitor Anne-Marie Hutchinson and counsel Mr Edward Devereux. The court wishes to express its gratitude to all involved for the quality of the representation which has been provided.

3

The children who make this application are:

Callum (d.o.b. 17 th February 1992, now aged 16 years)

Connor (d.o.b. 31 st October 1994, now aged 13 years and 3 months)

Daisy (d.o.b. 27 th July 1996, now aged 11 years and 6 months), and

Poppy (d.o.b. 26 th July 1998, now aged 9 years and 7 months).

4

The children have instructed Ms Anne-Marie Hutchinson who, after seeing the children separately on Monday 11 th February 2008, has provided an affidavit detailing her instructions from them. She has concluded that: “All four children are articulate and of an age and maturity when it is appropriate to consider their views. They are able to give instructions and wish to do so.” Callum has been present in court throughout this hearing and Connor and Daisy have both listened to a part, each at their own request. Their father had not given instructions to his lawyers that would enable them to consent to this course, but I took the view after hearing submissions that it was appropriate for the children to know how their application had been determined, whatever the end result. None of the children asked to speak with me directly and in light of the advocacy provided on their behalf I did not offer that opportunity.

5

The parties have a further child, Honey, (d.o.b. 28 th December 2002, now aged 5 years and 1 month), who is included within her father's application for summary return but because of her age and assumed understanding she is not included in the application for separate representation.

The Background:

6

The parties married on the 29 August 1992 when Callum was already 6 months old. During the marriage they lived in Worcestershire in a property which is still owned by the father. The parties purchased a second property in France, the successor to which is a house in the village of Francescas. In circumstances that are in dispute, the parties moved to France in July 2005 and initially lived together with their children in that property.

7

The parties' relationship deteriorated and it is apparent from the proceedings of the Tribunal de Grande Instance D'Agen that Mrs C made an application within that jurisdiction by a request dated 23 November 2006. On 21 December 2006 and at a conciliation hearing that court authorised the pursuit of a divorce and acknowledged the parties' separation by assigning the French property to mother for her use with the children, granting father one month to re-locate. The children's normal residence was declared to be with their mother and, in the absence of agreement, their father was granted staying including holiday visiting rights with them. The parties were to share parental authority and provision was made for maintenance. It is apparent that there were further proceedings in Agen in February and July 2007 in respect of which I have seen no record but in any event there is as yet no agreement as to the nature and effect of any of the applications and orders that were made in any of the French hearings.

8

On his own account father left the French property and the jurisdiction of France to live with his parents in Spain in March 2007 only to return to France and rent accommodation near to the family in June 2007. His case is that he went to the family home in France on the 31 st December 2007 to exercise contact with the children and found it empty.

9

Father asserts that at the time of their removal by their mother, the children's habitual residence was in France and that they were wrongfully removed. In her statement of defence mother asserts that the move to France in 2005 was for a temporary purpose and that the children's habitual residence remained in England and Wales. In addition she asserts that their father abandoned them to go to Spain and exposed them to an intolerable situation which would persist were they to return. She raises Article 13 defences including the objections of each of the children to their return.

10

As can be seen from the foregoing there is little of novelty having regard to the context of abduction proceedings in the general background to this application even accepting that there are many issues of fact which both parents raise. Almost nothing is now agreed between them. The proceedings have been set down for hearing as near as possible to the time deadline that is prescribed and at the time of handing down this judgment neither party has obtained permission to adduce oral evidence. It remains to be seen whether that will be necessary although sufficient time has been allowed to take account of the possibility that it will, should a judge grant permission for the same.

11

The one issue that differentiates this application from many others is that Callum is now 16 and by reason of Article 4, the Convention has ceased to apply to him. This court is not precluded from considering an application by father for his return but that has to be in the exercise of the court's inherent jurisdiction (see Re H (Abduction: Child of 16) [2000] 2 FLR 51). On 13 February 2008 Callum's father confirmed through his counsel that he did indeed seek to pursue his return. As is clear from the affidavit of Ms Hutchinson the children take a joint as well as a several view of these proceedings and there will arise real questions about the different considerations that the court will apply to Callum in contrast to his younger siblings and the questions of discretion and enforcement that will in any event arise.

Summary of the Decision

12

It is appropriate that the parties and the children should understand the decision I have made before I consider the detailed arguments I have heard. This inevitably involves some consideration of the law but I will be as plain as I am able.

13

In Re M (Children) (Abduction) [2007] UKHL 55, [2007] 3 WLR 975 Baroness Hale of Richmond set out the test that is to be used by these courts in Convention proceedings as follows:

“…the question for the directions judge is whether separate representation of the child will add enough to the court's understanding of the issues that arise under the Hague Convention to justify the intrusion, the expense and the delay that may result.”

14

In my judgment that has set the legal policy behind and the terminology of the test that I should apply. It is neither appropriate nor necessary to re-work the test by looking at the many previous legal authorities that there have been on the question. The decision of the House of Lords is, if I may say so, clear and binding on this court.

15

The position of Callum is clear. The Convention does not apply to him because of his age and different legal principles will be applied by this court when considering his father's application for him to return. Similarly, the question whether he should be separately represented within these proceedings is answered by the application of a different test from that relating to his brothers and sisters who are subject to the terms of the Convention.

16

If I consider the test relating to Callum I have no doubt that it is in his best interests to be a party to these proceedings and that he should be entitled to instruct the solicitor of his own choice. He need not use a litigation friend unless he chooses to do so. When I consider how the case that Callum wants to put inter-relates with the case of his brothers and sisters (and that of each of his parents) I am persuaded that the separate representation of the younger children will add to the court's understanding of the issues that arise under the Hague Convention. There is little expense and delay in the separate representation of the Connor, Daisy and Poppy having regard to the representation of Callum, indeed their guardian ad litem could choose to use the same solicitor. As to intrusion, that is the only real argument that father has once the...

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