Re D (A Child) (Abduction: Child's Objections: Representation of Child Party)

Hearing dates: 25 and 26 July 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 14 September 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

These proceedings concern an application under the 1980 Child Abduction Convention (“the 1980 Convention”). The parties are the Applicant mother, the Respondent father and the child, D, who was joined as a party to the proceedings. D acts through Mr James Netto, his solicitor, who was also appointed by the court as his guardian in the proceedings.

D appeals from the return order made on 26 May 2023 by Mr Dexter Dias KC, sitting as a Deputy High Court Judge (“the judge”). The judge found that D objected to being returned to Singapore but exercised his discretion by making a return order.

The broad issue which potentially appeared to be raised by this appeal was the role of a solicitor who is also acting as a child's guardian (a role which I give the shorthand, “solicitor-guardian”) in 1980 Convention proceedings. In particular, are there constraints on the scope of the evidence they can give, for example as to their assessment of the strength or source of a child's views, either legally or, if not legally, as a matter of practice?

The broad nature of this issue led to both Reunite International Child Abduction Centre (“Reunite”) and the Association of Lawyers for Children (“the ALC”) applying, and being given permission, to intervene by way of both written and oral submissions, for which I am extremely grateful. It also led to this appeal being listed together with the appeal from Theis J's decision in C v M and another [2023] EWHC 1182 (Fam) (“ C v M”), an appeal which appeared to raise the same issue. Judgment in the latter case has not yet been handed down and I propose to deal with Reunite's and the ALC's submissions in that judgment because that appeal raises this issue more directly than does this appeal.

The main challenge advanced by D in this appeal is to the judge's treatment of Mr Netto's evidence. There are three grounds of appeal:

(1) The judge erred in his approach to the role of a solicitor who is also acting as guardian in proceedings under the 1980 Convention and, as a result, wrongly attached no or negligible weight to the opinions expressed by Mr Netto as to, in particular, the extent to which D's views were influenced by his father;

(2) The judge erred in attaching little weight to the views of a Gillick-competent child on the basis that he had been exposed to the father's undue influence;

(3) The judge was wrong in the approach he took to D's welfare when exercising his discretion.

At the hearing of the appeal D was represented by Mr Turner KC, who did not appear at the hearing below, with Mr Bennett, who did appear at the substantive hearing below, and Ms Miller, who attended the hearing below to take the judgment, with the skeleton argument for the appeal having been drafted by Mr Harrison KC and Mr Bennett; the father, who acted in person below, was represented pro bono by Mr Green and Ms Fazeela Ishmael (with a skeleton argument drafted by Mr Green and Mr George); and the mother was represented by Mr Gration KC, who did not appear below, and Mr Edwards.

Background

The background, in brief, is as follows.

The father is a UK national. The mother is a national of South Korea. They married in 2000 in Hong Kong SAR. In 2007, they moved to live in Singapore. D, who is now aged 13, effectively lived his whole life in Singapore until his wrongful retention by the father in January 2023 when D was in England on holiday visiting the father.

The mother and the father separated in 2014. The parents appear to have been engaged in extensive litigation in Singapore about D and other matters (divorce and financial) since then. During this period D lived with or spent extensive time with each parent until the father moved to live in England in late 2020.

Prior to his leaving Singapore, the father applied to relocate with D to England. His application was granted at first instance in December 2018. The mother appealed and her appeal was allowed in August 2019 with the relocation order being set aside.

In October 2020, the Singapore court made a joint custody order with the mother having sole care and control and the father having extensive access. Very shortly after this order was made the father moved to England. The father's appeal from this order was dismissed in August 2021. In November 2021, the order was varied to provide that the mother should have sole custody.

In December 2022, an order was made by the Singapore court permitting D to travel to see the father in England between 17 December 2022 and 6 January 2023. The intention was, and the order provided, that the mother would accompany D and stay in England and that the father would pay for her flights and accommodation. However, when the time came, the mother was ill, with the result that D travelled on his own.

On 6 January 2023 the father told the mother that D had “decided to stay” in England.

The mother immediately applied to the Central Authority in Singapore.

On 1 February 2023, the father contacted Mr Netto and told him that D was refusing to return to Singapore. The father suggested that Mr Netto speak with D, which he did, by telephone on 1 February 2023. They spoke for almost one hour. They next spoke, again by telephone, on 13 February 2023. Mr Netto then wrote to both parents setting out a summary of D's wishes and feelings as relayed to him, namely that D wanted to stay in England and that it was “my present view that he is competent to instruct a solicitor directly, and that he is very clear about what he wants”. Mr Netto and D continued to communicate by WhatsApp.

Proceedings

The mother's application was issued on 15 February 2023. This was supported by a statement by her solicitor setting out a very brief summary of the background, as is typical in such proceedings.

The first hearing was listed for 22 February 2023. The mother's solicitors gave Mr Netto notice of this hearing.

On 21 February 2023, an application was issued for D to be joined as a party to the proceedings with a statement in support from Mr Netto which set out details of the information given to him by D and his assessment of D's maturity and level of understanding of the issues involved in the proceedings. It also suggested, “respectfully”, that the court would be best able to “determine [D's] objections to returning to Singapore” if he was joined as a party. Mr Netto indicated that he was “particularly conscious that [D's] mother alleges that he has been influenced by his father in the past” and again suggested that evidence in relation to this issue would be “best provided” by D.

The first hearing took place before a Deputy High Court Judge on 22 February 2023. The information available to the court was as described above and was, therefore, extremely limited. The mother opposed the application but D was joined as a party and Mr Netto was appointed as D's guardian. We do not have any note or transcript of the judgment but we have been told that the judge considered PD 16A of the Family Procedure Rules 2010 (“the FPR 2010”) and the three authorities to which he was referred, namely Re M (Abduction: Rights of Custody) [2008] 1 AC 1288 (“ Re M”); Re LC (Reunite International Child Abduction Centre intervening) [2014] AC 1038 (“ Re LC”); and Ciccone v Ritchie [2016] 4 WLR 60 (“ Ciccone”).

The parents were ordered to file written statements, as was Mr Netto. The order did not limit the nature of the evidence to be given by Mr Netto. A Cafcass report was also ordered to address: whether D objected to returning to Singapore; whether his objections were authentic; and, if D did object, whether those objections coincided with or were at odds with his welfare.

The mother filed statements dated 3 March, 28 March and 15 May 2023. The father filed a statement dated 17 March 2023.

The Cafcass Officer, Ms Cull-Fitzpatrick, met D on 3 April 2023 and provided a Report dated 11 April 2023. For the purposes of preparing her report she had the court bundle, the statements from the parents (other than the mother's third statement) and Mr Netto's first statement. D understood that he was meeting her “to share his wishes and feelings” but the Cafcass Officer considered that D only “had a vague understanding of the decision the court would be making on his behalf”. She, therefore “explained this to him in detail”. Ms Cull-Fitzpatrick considered that D's maturity was “commensurate with his chronological age”.

The Report sets out an account of what D told the Cafcass Officer which included that his father...