Re C (Children) (Abduction: Separate Representation of Children)
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Date | 2009 |
| Court | Family Division |
Child abduction – Child objecting to return – Separate representation – Father applying for return of children pursuant to Hague Convention and inherent jurisdiction of court – Children applying to be joined as parties – Court considering Convention and non-Convention tests for separate representation – Whether in best interests of eldest child to have separate representation – Whether separate representation for younger children adding to court’s understanding of Convention issues – Convention on the Civil Aspects of International Child Abduction 1980, arts 4, 13.
In 2005, the mother and father moved from England to France with their five children. Their relationship deteriorated and, on 21 December 2006, the pursuit of a divorce was authorised in French proceedings. The normal residence of the children was declared to be with the mother on the basis that the parties were to share parental authority. The father left France to live with his parents in Spain in March 2007, but returned in June. Upon attempting to have contact with the children in December, he discovered that the mother had removed them from France to the jurisdiction of England and Wales. He sought their summary return, relying on the Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague, 25 October 1980; TS 66 (1986); Cm 33) in relation to the four youngest children, who were aged 5, 9, 11 and 13 respectively. In relation to the eldest child, C, who was 16 years old, he relied on the inherent jurisdiction of the court since, by reason of art 4, the Convention had ceased to apply to him. The mother submitted that the children’s habitual residence had remained in England and Wales and raised defences pursuant to art 13 of the Convention, including the objections of each of the children to their return. The four eldest children applied to be joined as parties to the proceedings. For the purposes of the hearing, they instructed a solicitor who provided an affidavit stating that they were articulate and of an age and maturity when it was appropriate to consider their views. An issue arose as to the appropriate tests to be applied when determining whether to order separate representation in Convention and inherent jurisdiction proceedings.
Held – (1) Convention and non-Convention principles could not be elided simply because the father sought the return of an older child who had formally been subject to the Convention. Article 4 would have no purpose or
effect were that to be the case, and all children and young people would, by an extension of logic, face the same test on a return application regardless of the jursidiction to be applied. Entirely different and, very importantly, welfare considerations applied to the court’s consideration of C as a result of the application being made under the inherent jursidiction rather than within the more restrictive confines of the Hague Convention. Those welfare considerations could not be properly put by the mother whose evidence, at least so far as the four younger children were concerned, had to be focused on and limited by the articles of the Convention and the procedural practice of the court in Convention proceedings. In the circumstances, it was in C’s best interests to be a party to the proceedings and he should be entitled to instruct the solicitor of his own choice. If his father invited the court to split his siblings from him for the first time in their lives or the court determined that it had to seriously consider that option, there would be a a strong welfare argument that C should be allowed to present in reply. For the court to determine that it was not in his best interests for him to become separately represented would be an extraordinarily paternalistic and destabilising approach to adopt; Mabon v Mabon[2005] 2 FCR 354 applied.
(2) The proper test for the court in considering the question of party status in Convention proceedings was whether the separate representation of the child would add enough to the court’s understanding of the issues that arose to justify the intrusion, expense and the delay that might result. Considering how the case which C wanted to put inter-related with the case of his brothers and sisters (and that of each of his parents), the separate representation of the younger children would add to the court’s understanding of the issues that arose under the Convention. There would be little expense and delay in their separate representation, having regard to the representation of C; indeed their guardian ad litem could choose to use the same solicitor. As to intrusion, the instant case was not one where the children would be exposed by the proceedings to issues with which they had not previously been involved. It was therefore difficult to see how their involvement in the proceedings in order to have advocated that which they had already firmly expressed could be any more intrusive or harmful for them. Accordingly, all four children would be joined as parties and the three younger children would be represented by a guardian ad litem; Re M (children) (abduction)[2008] 1 FCR 536 applied.
Cases referred to in judgmentA, Re, HA v MB (Brussels II Revised: Article 11(7) Application)[2007] EWHC 2016 (Fam), [2008] 1 FLR 289.
B (A Child), Re[2007] EWCA Civ 1463.
D (a child) (abduction: foreign custody rights), Re[2006] UKHL 51, [2007] 1 FCR 1, [2007] 1 All ER 783, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961.
F (abduction: joinder of child as party), Re[2007] EWCA Civ 393, [2008] 2 FCR 334, [2007] 2 FLR 313.
Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830, HL.
H (a child: child abduction), Re[2006] EWCA Civ 1247, [2007] 1 FCR 345, [2007] 1 FLR 242.
H (Abduction: Child of 16), Re [2000] 2 FLR 51.
J (a child) (return to foreign jurisdiction: convention rights), Re[2005] UKHL 40, [2005] 2 FCR 381, [2005] 3 All ER 291, [2006] 1 AC 80, [2005] 3 WLR 14, [2005] 2 FLR 802.
M (children) (abduction), Re[2007] UKHL 55, [2008] 1 FCR 536, [2008] 1 All ER 1157, [2007] 3 WLR 975, [2008] 1 FLR 251.
Mabon v Mabon[2005] EWCA Civ 634, [2005] 2 FCR 354, [2005] Fam 366, [2005] 3 WLR 460, [2005] 2 FLR 1011.
N v N (25 September 2007, unreported); affd Re N[2007] EWCA Civ 1129.
S (Abduction: Separate Representation of Children), Re[1997] 2 FCR 342, [1997] 1 FLR 486.
Vigreux v Michel[2006] EWCA Civ 630, [2007] 3 FCR 196, [2006] 2 FLR 1180.
Z v Z (abduction: children’s views)[2005] EWCA Civ 1012, [2006] 1 FCR 387, sub nom Zaffino v Zaffino [2006] 1 FLR 410.
ApplicationsFour children applied to be joined as parties to proceedings, issued by the father against the mother on 5 February 2008, in which he sought the children’s summary return to France from the jursidiction of England and Wales. An issue arose as to the appropriate tests to be applied when detemining whether to allow children separate representation in such proceedings pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 and pursuant to the inherent jurisdiction of the court. The facts are set out in the judgment.
David Williams for the father.
Teertha Gupta for the mother.
Edward Devereux for the children.
Ryder J. The Application[1] This is an application by four children to be joined as parties to Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague, 25 October 1980; TS 66 (1986); Cm 33) and inherent jurisdiction proceedings which have been instigated by their father by an originating summons issued on 5 February 2008. Their father’s application followed their mother’s removal of them from France to the jurisdiction of England and Wales on 30 December 2007.
[2] The plaintiff, MMC, is the children’s father and he is represented by Mr David Williams. The defendant, SEC, 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 AH 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:
C ([born in] February 1992, now aged 16 years)
CO ([born in] October 1994, now aged 13 years and 3 months)
D ([born in] July 1996, now aged 11 years and 6 months), and
P ([born in] July 1998, now aged 9 years and 7 months).
[4] The children have instructed AH who, after seeing the children separately on 11 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.’ C has been present in court throughout this hearing and CO and D 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, H ([born in] 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 29 August 1992 when C 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 F. In circumstances that are in dispute, the parties moved to France in July 2005 and initially lived...
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Madonna Louise Ciccone v Guy Stuart Ritchie (First Respondent) Rocco John Ritchie (No 1) (Second Respondent)
...with his welfare (see [72], [73], below). Cases referred to C (abduction: separate representation of children), Re[2008] EWHC 517 (Fam), [2009] 1 FCR 194, [2008] 2 FLR Cannon v Cannon[2004] EWCA Civ 1330, [2004] 3 FCR 438, [2005] 1 WLR 32, [2005] 1 FLR 169. D (a child) (abduction: foreign c......