H (A Child)

LORD JUSTICE THORPE: M is a 15-year-old whose settled home is with her mother in South Africa. Her parents married in Zimbabwe in 1987 and divorced in that country in 1994. Since 2000 her father has lived in this country and since 2002 she has lived with her mother in the Cape. The father we are told has strong connections with South Africa. It was suggested that his father lives there and that he visits the country frequently. However, since the divorce Megan’s residence with her mother has been sustained by regular contact with her father in England. The pattern has been for her to spend alternate school holidays here. So pursuant to that pattern she was here for the Easter holidays. She had a ticket returning home on 17 April for her school term (I think she goes to school in Franschhoek) and term was to begin on 19 April but she did not return. A day or two before the seventeenth she sought her mother’s agreement to staying on for a few extra days. Her mother refused. M then decided to order her life in accordance with her own wishes and, not surprisingly, the mother swiftly issued proceedings under the Hague Convention for a peremptory return order.

Those proceedings were fixed for trial on 10 July. However, by a route that has not been investigated M found her way to a solicitor with very great experience in this field, Mr Ranton of Kingsley Knapley. All we know is that in a subsequent email to her mother, she said:

“I was advised to have my own lawyer, and at first I wasn’t too sure about it, but I spoke to him, and he explained everything to me.”

The upshot was an application for M to be joined as an additional party to the Hague proceedings. That application came before Mr Jeremy Richardson QC sitting as a deputy judge of the Family Division on 9 June 2006. By that date the Hague proceedings had developed to the point that the father did not contest the Article 3 jurisdiction and sought to avoid an Article 12 return order by relying on the Article 13(b) defence that a return would risk grave harm to M.

It was against that background that the deputy judge considered the application conscientiously and had regard to the clear line of authority in this court, particularly selecting a passage from the judgment of Sir Thomas Bingham MR, in the case of Re M (A Minor) (Child Abduction) [1994] 1 FLR, as a classic statement of the underlying principles. The passage that he selected at page 397 is in these terms:

“The Convention is intended to provide a simple and summary procedure for returning to their country of habitual residence children who have been wrongfully removed from it. The courts would not be true to the letter or the spirit of the Convention if they allowed applications to become bogged down in protracted hearings and investigations. While I accept that there is jurisdiction to permit the children to be joined as parties it would very rarely be right to exercise it, and compelling grounds would be needed. It is for the judge in the country of habitual residence to decide what is best for the child in the medium and longer term. Ordinarily, therefore, appeals such as that of the mother in this case must be doomed to speedy failure.”

Having analysed the situation before him, he concluded that it was imperative that M’s views should be fully considered and her voice clearly heard by the trial judge. The real question therefore was: how was that objective to be achieved? His resulting decision was the involvement of a specialist CAFCASS officer. He took the opportunity to set the case over and bring in Mr John Mellor to give him an oral report. He came to the clearly and firmly expressed conclusion that that was the appropriate way forward. M’s voice would be clearly heard through the continuing involvement of Mr Mellor. There was simply no circumstance that could be labelled sufficiently exceptional to justify her intervention with the status of a party.

M’s perception of what it meant to be a party in proceedings was necessarily imaginative rather than founded on any experiences but we can see from the affidavit or statement of Mr Ranton that she wished to limit as far as possible her need for physical attendance at court. She sought only the opportunity to communicate freely with her legal representatives.

The application to Mr Richardson was advanced by a most experienced specialist, Mr Michael Nicholls, and he sought permission to appeal, which the judge predictably refused. Accordingly, Mr Nicholls renewed his application to this court, where Wilson LJ on 5 July granted permission on both grounds 1 and 2 and directed an urgent hearing. What are those grounds? The first is that Mr Richardson erred in the exercise of his discretion in concluding that the case was not exceptional within the terms of the authorities. The second ground was a root and branch challenge to the authorities. Mr Nicholls boldly submitted that the exceptional circumstances test required to be reconsidered if not abandoned, in the light of recent developments in the international approach and modern acknowledgement of the autonomy of children in all aspects of their lives, including their involvement or their potential involvement in litigation.

In support of his first ground, Mr Nicholls suggested that this was not an abduction by a father. This in reality was a child-inspired retention. M’s grounds for rejecting her settled home, her South African environment, her mother, were none of the father’s doing and only she had the knowledge of fact and circumstance in South Africa to explain her settled decision. How could her father advance such a case when he had been shut out of information about her progress and development in South Africa over the preceding year or so? That, said Mr Nicholls, rendered the case exceptional.

In support of his second ground he placed particular reliance on the greater freedom given in private law proceedings in this jurisdiction to the participation of children and he referred to Rule 9.2(a) as effectively opening the door to party status for any capacitated child. He laid great emphasis on the decision of this court in Mabon v Mabon. It was a case in which both my Lord and I were sitting, and we reversed a circuit judge who had refused to allow a capacitated child to dispense with the yoke of a guardian’s role. Mr Collins for the father supported Mr Nicholls submissions, emphasising that his client had a passive part in the proceedings and drawing attention to reports from South Africa which had been filed by the mother.

We have looked with some care at those reports because they are questionably in evidence. One of them is a report from a clinical psychologist who has been in a professional relationship with M, apparently following the exposure of M and her stepsister to pornographic material via the internet. It seems that the psychologist’s methods of intervention were observation, something almost unbelievably described as the Rorschach Inkblot test, then Kinaesthetic Family Drawing, Sandtray techniques and Art therapy. I would have thought that there would have been considerable inhibition on a clinical psychologist furnishing such a report, without greater consideration of the confidentiality of the therapeutic relationship between her and the child. Even more questionable is the filing of a report by a lady describing herself as a private social worker. She has never met M and was instructed to prepare a report, which is described as a psychosocial report, only after M had rejected the parental arrangements for her return.

We have strongly questioned the relevance of those reports and the wisdom of filing them in these essentially summary proceedings. We have suggested to Mr Cobb that they would be better withdrawn but Mr Collins has aptly observed that they are in evidence and have been considered by Mr Mellor and have been discussed between Mr Mellor and M. To that extent at least M’s views on that evidence, either impermissible or irrelevant, is at least recorded.

Mr Cobb has of course supported the judge to the hilt. He says plainly there is nothing exceptional about this case, and as to ground 2, the appellant misunderstands the context and effect of rule 9.2(a). Mr Cobb, in my judgment, correctly submits that the involvement of children in private law cases is regulated by Section 10(a) to the Children Act 1989, should they seek to launch an application, and by Rule 4.7 of Family Proceedings Rules if they seek to intervene. The whole point and purpose of rules 9.2, 9.2(a) and 9.5 is only to regulate their participation after they have crossed the first fence and attained party status. Rule 9.2(a) in particular applies to those cases in which a child with party status seeks to continue without the support of the guardian.

So that is precisely the territory that this court was concerned with in the case of Mabon v Mabon [2005] 2 FLR 1011. Mr Nicholls’ reliance on that case is, Mr Cobb submits, inappropriate given that the court was there dealing with private law proceedings under the Children Act 1989 and a full merit enquiry. The key question was whether the eldest child should be free to present his case at the further hearing without what he regarded as the unwarranted restriction of a guardian ad litem.

My short conclusion on this appeal is that the judge below was correct for the reasons that he gave. I would like to pay tribute to what I read as an extremely clear and careful judgment. I most firmly reject the suggestion that the exceptional circumstances test should be in any way relaxed. As Mr Cobb makes plain by the very helpful table with which he has prefaced his authorities, that principle can be traced back to the decision of this court in S v S [1992] FLR 492. I share the judge’s selection of the passage from the judgment of Sir Thomas Bingham MR as being the classic statement of the proposition. It can be seen to have been affirmed in Re M [1994] 2 FLR 126, Re HB [1998] 1 FLR 423 and Re J [2004] 2 FLR 64.

We have looked briefly at those rare reported cases in which a child has been granted separate representation and a thread which is common to most if not all, is that in those cases there was something close to a public law dimension. Although this is not stressed by Hogg J in the case of Re T [1999] 2 FLR 796, the real justification for the grant of party status in that case was surely that the application for a return to the Republic of Ireland was brought under a European regulation. The child had been in foster care in Ireland and it was essentially the Irish state which sought her return. Under those circumstances plainly she was entitled to party status. A similar state involvement is perceptible in one or more of the other cases in which party status has been granted.

I am, if anything, inclined to the view that the test for the grant of party status should, if it is to be revised in any direction, should be in future more rather than less stringently applied. Mr Cobb is right to draw attention to the obligation on the state to conclude return applications under the 1980 Hague Convention and under the regulation Brussels II Revised with maximum expedition. The obligation under the European regulation is clearly spelt out as within six weeks, save in exceptional circumstances. Of course it is vital that the voice of the child should be heard, and that is an absolute requirement for enforcement under certain articles of the regulation. However the method by which the voice of the child is heard admits of a wide degree of appreciation in the individual member state, as recital 19 to the regulation records.

If the target of six weeks from issue to determination is to be achieved, these cases may have to be conducted more summarily than has been the convention in our jurisdiction. We have a marvellous tradition of oral advocacy and that is a feature that distinguishes us from most of the other member states of Europe. By way of relevant contrast an application within our near neighbour, the Netherlands, is invariably disposed of within six weeks, for the simple reason that it is not in accordance with their tradition to accept oral submissions save in exceptional cases. So the whole case, evidence and submissions, is laid before the judges on paper within a period of 14 to 21 days and the court then proceeds to decide.

If we are to comply with our international obligations, we have to consider ways of paring down the litigation process whilst always maintaining the requirements of natural justice and of fair trial, whether within the concept of article 6 of the Human Rights Convention or within the concept of the common law.

I also recognise the relevance of Mr Cobb’s observations about public funding. The volume of Hague Convention cases may be limited to 150 incoming cases a year, as Mr Nicholls suggests. But nonetheless, automatic public funding for the applicant without merit or means testing, together with the very ready grant of certificates for leading counsel, means that we are out of strictly limited public funds already allocating to international cases resources that may be customary but which must always be justifiable.

I end by the observation, which is perhaps almost unkind, that Mr Nicholls’ submissions are hardly supported by the leading work on the subject of the international movement of children. Written by Professor Lowe, HHJ Everall QC and Mr Nicholls himself, there is an admirably clear summary of the English position both on eliciting the views of the child and on granting the child separate representation between sections 17.169 and 17.178. In paragraph 17.179, the authors consider the position in the two other jurisdictions within the United Kingdom and notice conformity. They then go on in paragraph 17.180 to consider the position in other common law jurisdictions and note that, whilst the courts have power either to interview the children or to order their separate representation, the courts are generally reluctant to involve children directly in proceedings, preferring instead to rely upon professional reports. In their final paragraph on this topic, 17.181, the authors consider the position in civil law jurisdictions where the children are more likely to be heard directly by the judge. It is significant and in a sense reassuring to note that the principles applied consistently by this court over the last fifteen years are in step with the principles applied by other member states of the Hague community, whether they be in the wider common law world or whether they be in the civil law jurisdictions.

So I return to express a tribute to the quality of the judgment of the deputy judge and to record my conclusion that this appeal must be dismissed.

LORD JUSTICE WALL: I agree that the appeal should be dismissed for the reasons which my Lord, Lord Justice Thorpe, has given. I add a few words of my own, partly because it seems to me the points raised by Mr Nicholls this afternoon are of importance, and partly because a number of my own dicta have been cited during the course of the documentation and the argument.

Mr Nicholls raises two challenges to the judge’s judgment. The first that he was wrong not to find that the term “exceptional circumstances” applied in the instant case. Secondly, and more profoundly, he submitted that if he was wrong about that, then as a matter of policy, the restriction on the joinder of competent children in abduction cases to those falling within a “exceptional” class was no longer justifiable, now that children were able to participate fully in other family proceedings in which the issues may be just as complicated and the outcome just as serious, if not more so. He argued that the test by which the learned judge regarded himself as being bound, namely that there must be exceptional circumstances to justify M’s joinder in these abduction proceedings, was no longer sustainable in the light of the modern approach to the participation of children in other proceedings concerning them.

In approaching these two questions, it seems to me important that we should remember what we are deciding and what we are not deciding. We are not deciding the substantive application or adjudicating on the merits of M’s case under article 13. That is a task for the judge who is to hear the originating summons, which we now understand will be heard in early August. What we are deciding, in my judgment, is how M’s voice can properly be heard in the proceedings, so that her Article 13 defence can be properly resolved by the judge hearing the case. Although Mr Nicholls did not accept this formulation, I would put the question this way: does she require separate representation for her voice properly to be heard?

I have come to the clear conclusion on the facts of this case that she does not. I reach that conclusion in the following way. The first point one has to remember, although Mr Nicholls again argued it, was that the procedure under the Hague Convention is summary. By this I mean that it is not a welfare enquiry in which evidence is taken and the circumstances of the child minutely examined. Subject to any successful article 13 defence, welfare is for the courts of the child’s habitual residence, not the receiving state.

The second point I make I think flows from the first. There are in my judgment material differences between the question of separate representation for a child in a welfare enquiry and separate representation in summary proceedings under an international convention, where the welfare enquiry is to take place elsewhere. I firmly reject the submission that because in domestic private law applications under the Children Act there may be perceived to be a trend towards the more liberal use of separate representation in cases of particular difficulty, or in relation to older children as a means of ensuring that the voice of the child is heard properly there; (see for example Mabon v Mabon) it follows that the test for separate representation in cases under the Hague Convention is no longer that of exceptional circumstance.

Lord Justice Thorpe, has cited the passage on which the judge relied from the judgment of the Master of the Rolls in the case of Re M [1994] 1 FLR 390. That decision has been followed consistently by this court and by courts at first instance, including myself, in the years since it was enunciated. In my judgment it is well entrenched; it is correct and it is not open to this court to gainsay it.

In my judgment, the only mildly unusual feature of this case is that M is 15, and therefore only a little below the threshold above which the convention ceases to apply. But in my judgment, that does not go to the question of her representation. It goes to the likely merit of her defence, not how it can best be advanced. Another unusual feature of the case as argued is that the father says that because he has not lived in the same household as M for some time, he is unaware of the factors which motivate M’s unwillingness to return to South Africa. I find that submission difficult to accept but even if it is the case, it is not in my view a compelling argument for separate representation.

Inevitably, the child’s objection under Article 13 has to come from M herself. She has to articulate it. She has done so to Mr Mellor the senior CAFCASS officer, and if necessary she can do so again. Alternatively, she can put in a statement which the judge will read. It is plain that she does not want to be engaged specifically in the proceedings. She has said that she does not want to be in court. She does not want to be embroiled; so much is plain from the affidavit from her solicitor. What she wants to ensure is that when the judge makes his or her decision, her objections to returning to South Africa and her views are fully before the judge and have been fully taken into account in the judge’s decision.

In my judgment, she does not need separate representation for that to be achieved. Mr Nicholls has not of course had the advantage of reading Mr Mellor’s report but it is full and very clear and what we do know from Mr Mellor, because he says so in terms in a letter which he has written I think, to the mother’s solicitors, is that he has sent the draft report, or a near final draft of his report to M by email. She suggested a minor correction but otherwise said she thought it set out her views “accurately and satisfactorily”. In my judgment M can be reassured that the judge will not only have her views very clear and strong from Mr Mellor, but will also receive any other information she wishes to put to him.

I was in the course of argument extremely concerned, like my Lord, Lord Justice Thorpe, to see that the mother had put into evidence two reports relating to M, one from a clinical psychologist and one from a private social worker, the latter never having met M. I was concerned if those reports had simply gone before the judge without any counter-balancing factor, that might well be an argument for M’s instructions on them to need to be taken or even might provide the basis for Mr Nicholls to argue that it was unfair for M not to be represented when material relating to her of that nature was being put before the court. I am, however, reassured by Mr Mellor in the CAFCASS report where he records that he has discussed these documents with M and that she, quite rightly in my view, is angry and upset that what she perceived to be a confidential relationship with her psychologist, or the psychologist whom she had seen in South Africa, has been breached and a report put before the court, and the report from the social worker -- I think it is too obvious to say -- its value must be minimal in the extreme, since the social worker in question has never met the child and has plainly written to a brief to support the mother’s case.

So my anxieties about those documents going before the judge are considerably assuaged by the fact that M has been able to discuss the position with Mr Mellor, Mr Mellor has put her point of view clearly before the court and the court itself will form its own judgment as to the value of the documentation.

One other point which I wish to make is that, as I put to Mr Nicholls in the course of argument, I do not normally buy the floodgates argument. I am always sceptical when it is raised by counsel as a reason for not taking a particular course. But in this case it does seem to me that if we grant M representation in a case where, in my judgment, there are effectively no exceptional circumstances, it would be very difficult to refuse separate representation for any other 14 or 15-year-old who is the subject of an application under the Convention and who wishes to be joined as a party. In my judgment, there is as I say nothing exceptional in her case, except perhaps her age, but as I have already stated, that in my view goes to the merit or strength of her defence, not to the manner in which it has been advanced.

We have looked today at the authorities and we have looked carefully at the judgment of the deputy judge. The only case which comes anywhere near supporting Mr Nicholls’ proposition is the decision of Hogg J in Re T, where she granted separate representation on the ground that the parent with whom the child was living had not had an opportunity to know much about the child’s previous life. That was an exceptional circumstance which enabled her to grant the child representation. But it is in my judgment clear on further examination of that case that it fell into the category which my Lord, Lord Justice Thorpe, has identified; namely, that of a quasi public law case, because the applicant for relief was of the Irish Health Authority and the events which were clearly going to form the subject of the child’s objection had taken place whilst the child was in care in Ireland, and in those circumstances it seems to me possible that the child needed specific advice and specific guidance in the presentation of an article 13 defence. I have some doubts about the case but clearly Hogg J felt it was exceptional, and it falls into the category which my Lord has identified. Certainly it in no way, in my view, derogates from the strong line of authority to which we have referred and which begins with the decision of the Master of the Rolls in 1994.

Like my Lord, I would like to pay tribute to the judgment given by the deputy judge. It was not an easy task for someone who would not normally take a case under the Hague Convention. It seems to me on reading his judgment that he analysed the law very carefully; he reduced it to a series of propositions, all of which are sound; he directed himself appropriately as to the law; he was satisfied that the child’s position would be clearly put before the judge, that she would not be disadvantaged and that her defence could be fully heard.

In those circumstances, it seems to me he reached the right decision for the reasons he gave and like my Lord, Lord Justice Thorpe, I would dismiss this appeal.