Representation of Children in Abduction Proceedings

Last year, Walker Family Law was involved in an important Court of Appeal case about the representation of children in abduction proceedings under the Hague Convention 1980. Two cases were heard together and the full judgements can be read at the links below:

Re D (A Child) (Abduction: Child’s Objections: Representation of Child Party), in which we represented the mother.

C v M (A Child) (Abduction: Representation of Child Party)

In any family court case, children can be caught up in very bitter disputes between their parents. In abduction cases, conflicts arise when a child opposes returning “home,” especially when it conflicts with the applicant parent’s wishes. It is really important that a child’s voice is heard in these circumstances, as one of the five limited defences to a Hague Convention application is a child’s objection to a return.

There are various methods supporting children’s voices in family courts, sometimes involving separate representation for the child, ensuring effective participation.

In abduction proceedings, this can either be by:

A ‘Cafcass guardian’, a court social worker, who will then instruct a solicitor.

A ‘solicitor-Guardian’, where a child instructs the solicitor directly, rather than via a Cafcass officer.

Background

Re D

A solicitor-guardian was appointed for the child, ‘D’, at the first hearing. Through the solicitor-guardian, D expressed his wish to remain in England. At the final hearing, the judge concluded that although D objected to returning to Singapore, he had been “heavily and unduly influenced” by his father in England. The judge also expressed concerns about the solicitor guardian providing opinion evidence regarding D’s objections.. D appealed.

C v M

The court had ordered the return of the child, ‘X’, to Mauritius, but X then applied to be joined as a party and to set aside the return order. A solicitor-guardian was appointed for X. At a final hearing, the judge refused to make a return order and accepted evidence that it was likely X’s views were her own and there would be ‘significant emotional consequences’ if she was ordered to return to Mauritius against her wishes. The father appealed.

Appeal

A key issue for the Court of Appeal was the role of a solicitor-guardian and the scope of the evidence they should give, particularly considering they do not have the same expertise and training as a Cafcass officer.

Due to the significance, the Court permitted Reunite International and the Association of Lawyers for Children to intervene.

Decision

In Re D, The Court of Appeal allowed D’s appeal and ‘regrettably’ sent the case back to the High Court for a new hearing. The Court agreed with much of the analysis of the judge regarding the solicitor-guardian’s evidence but concluded that the judge had effectively treated his evidence as inadmissible, which was not correct and affected the fairness of the proceedings.

In C v M, the father’s appeal was dismissed. 

With regard to the overall guidance regarding solicitor-guardians, the Court of Appeal has asked that this be addressed by the Family Procedure Rules Committee. In the meantime, the guidance can be summarised as follows:

It should be rare that a child is separately represented. The child’s voice will normally be sufficiently heard through Cafcass report.

If suggesting separate representation for a child, they must meet the Cafcass High Court Team first, except for compelling reasons.

Non-expert opinion evidence is admissible .

Pending further guidance, certain matters, like assessing the authenticity and strength of a child’s views, remain within Cafcass officers’ purview.

Currently, solicitor-guardians should refrain from providing opinion evidence beyond what’s essential to justify the child’s competence to instruct them.

How can we help?

For information on how we can help, please see our Child Abduction page.

Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.

Please contact us if you require any further information.