Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal)
| Jurisdiction | England & Wales |
| Judge | Black LJ,Ryder LJ,Richards LJ |
| Judgment Date | 27 January 2015 |
| Neutral Citation | [2015] EWCA Civ 26 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/2445, 2447 & 2499 |
| Date | 27 January 2015 |
[2015] EWCA Civ 26
Lord Justice Richards
Lady Justice Black
and
Lord Justice Ryder
Case No: B4/2014/2445, 2447 & 2499
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT (PRINCIPAL REGISTRY)
MRS JUSTICE ROBERTS
FD14P00628
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Hames & Ms Dorothea Gartland (instructed by Freemans) for the 1 st & 2 nd Appellants
Ms Ruth Kirby (instructed By Co-operative Legal Services) for the 3 rd Appellant
Mr James Turner QC & Ms Mehvish Chaudhry (instructed by Williscroft & Co) for the Respondent
Hearing dates: 4 th & 5 th November 2014
This is an appeal from a decision made by Mrs Justice Roberts on 18 June 2014 in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the 1980 Convention").
The proceedings concern three children. They are J (born in December 2001 and now 13 years old), T (born in November 2003 and 11), and I (born in June 2008 and 6).
On the application of the children's father ('the father'), Mrs Justice Roberts ordered the return of the children to the Republic of Ireland. At first instance, the only parties to the proceedings were the father and the children's mother ("the mother") who had brought them to this country on 12 March 2014 and who resisted the father's application on two bases arising under Article 13 of the 1980 Convention, namely the Article 13b) and the child's objections exceptions.
The children have an older brother, D, who had his 17 th birthday in December 2014 and was 16 at the time of the proceedings before Mrs Justice Roberts. By virtue of his age, he was not the subject of a Hague Convention application. However, following Mrs Justice Roberts' decision, he and J consulted a solicitor and applications were made on their behalf to the Court of Appeal for permission to appeal against her order. The applications came before me on paper on 24 July 2014, as a matter of urgency, when the return order was just about to become operative. I granted J permission to appeal and, taking a course which is exceptional for appeal proceedings, listed the case for directions on 30 July 2014.
The directions hearing was attended by counsel for J and D (Mr Hames), counsel for the mother (Ms Kirby), and leading and junior counsel for the father (Mr Turner QC and Ms Chaudhry).
I granted permission to D and the mother to appeal and gave directions with a view to the appeal being heard promptly, although for various reasons it was not heard as quickly as I would have liked. In addition to the substantive issues concerning Mrs Justice Roberts' order, procedural issues arose in relation to the joinder of the children as parties to the proceedings for the first time at the appeal stage. It was possible to deal with their participation at the directions hearing pragmatically in a way which was universally acceptable but I referred to the full court for consideration, if it deemed it appropriate, the question of what procedure should be followed in these circumstances.
At the full appeal, the parties were represented by the same counsel as at the directions hearing, save that the children were represented by Mr Hames leading Ms Gartland. Ms Kirby represented the mother pro bono, public funding not having been available to her although it is, of course, automatically available to an applicant for an order under the 1980 Convention. We are very grateful to her for redressing the unfairness that would otherwise have arisen. Thorpe LJ and Munby LJ (as they then were) expanded graphically in Re K [2010] EWCA Civ 1546 [2011] 1 FLR 1268 upon the disparity in the resources made available to the parties in proceedings such as this and the practical disadvantages at which this can place the respondent parent, see §§33 to 36 and 44 to 46 ibid.
The issues to be determined
The issues that fell for determination at the appeal were twofold: (1) the substantive challenge to Mrs Justice Roberts' return order and (2) the procedural question relating to the joinder of children as parties for the first time in the Court of Appeal.
The main substantive debate revolved around the judge's determination in relation to the child's objections exception in Article 13 of the 1980 Convention. It was also argued that the judge was wrong to reject the mother's argument based upon Article 13b) but this was very much a subsidiary part of the case presented by the appellants and, in the event, it has not been necessary to deal with it separately.
The law
In this case, as in others reaching this court in recent times, there was a significant debate as to the proper approach to the child's objections exception. I have therefore considered this in some detail and I propose to commence by examining the relevant law.
Some general observations
In cases under the1980 Hague Convention, speed is of the essence. The object of the Convention is to return abducted children as soon as possible to their home country, restoring the status quo and enabling the courts there to determine whatever disputes there are about their future upbringing. The longer the time that elapses following a wrongful removal or retention, the more difficult it becomes to return the child. In recognition of this, judgment is expected to be given no later than 6 weeks after the commencement of the proceedings (see Article 11(3) of Brussels IIa ( Council Regulation (EC) No 2201/2003 of 27 November 2003, hereafter simply "Brussels IIa") and Article 11 of the 1980 Convention. The procedure adopted is summary.
It may be thought paradoxical that a summary procedure such as this should have generated the quantity of jurisprudence that the 1980 Convention has. Over the years there have been many technical and sophisticated legal arguments about how its terms should be interpreted and a significant number of appeals.
Technicality of this sort gets in the way of the objectives of the Convention. In Re P-J (Children) [2009] EWCA Civ 588 [2010] 1 WLR 1237, Wilson LJ (as he then was) observed, "Nowadays not all law can be simple law; but the best law remains simple law." In recent times, it has become increasingly apparent that the law relating to child's objections under Article 13 of the Convention, as it is presently perceived to be, is far from simple law. To judge by the number of applications to the Court of Appeal for permission to appeal on this point, it is not at all easy to put into practice. Does this have to be the case?
In order to attempt to answer that, I have reviewed the domestic jurisprudence in this field stretching back over more than two decades and cast an eye also over the way in which the law has been applied in other Hague countries. The parties provided the court with two lever arch files full of authorities and I have looked at many more although I refer only to certain of them in this judgment.
Core provisions
It may be convenient to start my analysis by setting out the terms of Articles 12 and 13 in so far as they are relevant to child's objections.
Article 12
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
…."
Article 13
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
(a) [consent and acquiescence]
(b) [grave risk]
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained the age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."
Also relevant is Article 11 of Brussels IIa. This reinforces the 1980 Convention in the European context and, in relations between Member States, in so far as both the Convention and the Regulation cover the same matters, the Regulation takes precedence. I will not set out the whole of the article here, only Article 11(2) which is of particular importance.
Article 11(2)
"When applying Article 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity."
Another provision that makes a regular appearance in the jurisprudence is Article 12 of the United Nations Convention on the Rights of the Child 1989 (which came into force in the UK in January 1992) which provides:
"1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
The exercise of this right may be subject to certain...
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